REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. E008 OF 2023
TIMOTHY KIPTANUI KITAI alias CHEPARKACH…..1ST APPELLANT
CLEOPHAS NGEYWO KITAI…………………………....2ND APPELLANT
VERSUS
REPUBLIC……………………………………………………….RESPODENT
(Being an appeal from the judgement of Hon. P.N. Gesora-C.M in Bungoma Criminal Case No. 410 of 2018 dated and delivered on 16th February 2023).
JUDGEMENT
A. Background
1. The Appellants herein are challenging their conviction and their respective sentences of death penalty under Count 1 for the offences of robbery with violence contrary to Section 296 (2) of the Penal Code. Additionally, the 2nd Appellant was sentenced to serve another 10 years imprisonment under Count 9.
2. Particulars of the offence under Count 1 being that on 12th January 2018 at around 10.00 p.m. at Korng’otuny area of Kopsiro Division within Bungoma County, jointly with others not before Court, while armed with dangerous weapons namely AK47 rifles, pangas, rungus and metal bar robbed off BONIFACE KIRUI KIBOI cash Kshs. 20,000/= and at the time of such robbery killed ELUID ROTICH and ALFRED CHEBONYA.
3. Additionally, particulars of the offence under Count 9 being that on 13th January 2018 at around 3.20 a.m. at Korng’otuny area of Kopsiro Division within Bungoma County, the 2Nd Appellant intentionally and unlawfully caused his penis to penetrate the vagina of LORNA CHERUTO without her consent.
4. When arraigned before Court, the Appellants pleaded not guilty to the both Counts. The matter was set down for hearing.
B. Evidence
B.1 Respondent’s Evidence
5. The Respondent’s first witness PW1 testified that he knew both the Appellants herein as the 1st Appellant was known to him as Cheparakachi while the 2nd Appellant as Ngweyo. He recalled that on 12th January 2018, at 10.00 p.m. he heard noises emanating from the home of one Javan and the noise confirmed to him that a gunshot had been fired in the home of one Alfred Chebonya, father of Javan. He told the Court that as a neigbour he woke up and so did other neighbours and while armed with matchets they proceeded with the deceased Eliud Rotich Kiboyi towards the source of the noise. They then heard the voice of the 1st Appellant herein saying that thieves had taken the route towards Uganda. As the deceased lit the torch he also spotted the 2nd Appellant who was screaming that the thieves had taken the Ruanda route. He told the Court that he noticed that the 1st Appellant herein was armed with a gun while the 2nd Appellant had a panga. The 1st Appellant shot the deceased on the right leg and the 2nd Appellant approached the deceased with a panga, and cut him on the back of his neck. He told the Court that he fled the scene and only returned to the home of Alfred at around midnight where he found him dead. It was his testimony that Eliud did not survive the attack. He maintained that he had recognized the voices of the Appellants herein as they were his neighbours and that he also knows the father to the 1st Appellant. He told the Court that the Appellants were about 6-10 meters away from them when they were attacking the victim.
6. on cross-examination by the 1st Appellant, PW1told the Court that nothing was stolen from him and that the scene of crime was at the home of Javan. He maintained that he witnessed the attack from a distance of 10 meters away and that he recognized the Appellants voices and that the deceased, Rotich, had illuminated the assailants with his torch.
7. On cross-examination by the 2nd Appellant, PW1 told the Court that the 2nd Appellant’s home was about 2 kms from his and that it was the 2nd Appellant who cut the deceased. He maintained that he was close enough to see the 2nd Appellant as he was about 10 meters from him and that Eliud Rotich had directed his torch light towards the Appellants. He maintained that as the villagers were screaming for help, the 2nd Appellant was shouting and misdirecting the villagers. This witness testified that he knew the 2nd Appellant very well as he was a boda boda operator who had ferried him on many occasions.
8. On re-examination, PW1 told the Court that he did not light up his torch as he was apprehensive that he too could have been shot in a similar manner to Rotich. He stated that Korgotuny and Cherwadoyi villages border each other. Further that as he took flight, he had turned momentarily, and saw the 2nd Appellant cutting up the deceased as the latter lamented “oh I am dying” in Sabaot language. That the villagers were urging each other to pursue the thieves in the direction that the Appellants were misleading them to.
9. PW2 recalled that on 12th January 2018, at around 10.00 p.m. while sleeping she heard 3 people calling to her husband urging him to open his door complaining of the harsh cold. She told the Court that they hit the window of their bedroom which easily gave way and torch light was directed towards the bedroom. The next thing that happened was that their door was broken down and the intruders gained ingress into the house. It was her testimony that the intruders had torches, a rifle, pangas and rungus and 2 peoples entered the house. According to her the first person was the 2nd Appellant herein and she recognized his voice and face and he was armed with a panga. The 2nd Appellant instructed her husband who was now standing by the bed to stretch out his hand, the 2nd Appellant cut the mosquito net and used it to tie up her husband’s hands together and he then directed him to lie on the floor. The 2nd Appellant ordered him to produce the money that he had in his possession and he then started to hit her husband with a stick on his ribs. She told the Court that the 2nd Appellant then hit her husband on the back and his head, but they did not give out any money. She then told the attackers that they had expended all their money in paying their children’s school fees. Further that as she picked her purse the 2nd Appellant grabbed it and searched through it. It was her testimony that the 2nd Appellant only found Kshs. 500/= which he took and it was at this point that the 1st Appellant walked in and then left. She observed that the 1st Appellant was very restless as he would walk into the bedroom then walk out. She told the Court that she knew the 1st Appellant very well as he ran a shop at Maiti and he was also a farmer and that she has known him for 3 years. The man at the window alerted the 2nd Appellant of the incoming villagers and the 2nd Appellant ransacked her husband’s trousers and found Kshs. 3,000/=. The 2nd Appellant quickly located an axe from under their bed and hit her husband with the handle on the legs and his hands. She told the Court that the 2nd Appellant left their house and was conversing outside with the 3rd person before the arrival of the villagers and that was when she heard a gunshot and the screaming stopped. She told the Court that the invaders shot thrice prior to heading towards her father-in-law’s house, Alfred Chemos.
10. On cross-examination by the 1st Appellant, she told the Court that they were attacked at 10.00 p.m. and that she recognized the 1st Appellant’s voice and saw his face when he entered the house with the help of the 3rd invader’s torch from their bedroom window. She told the Court that the 1st Appellant is from their neighborhood. She confirmed that Alfred was killed but she did not know who killed him.
11. On cross-examination by the 2nd Appellant, she told the Court that she knew the 2nd Appellant very well as he lived about 25 km from her and that he was the one who invaded her house at 10.00 p.m. She told the Court that she was able to identify the 2nd Appellant when he entered their house with the aid of the torchlight coming from the window where the 3rd invader stood.
12. On re-examination, she told the Court that the 1st Appellant is a shopkeeper at Corner Maiti and that she was able to see the Appellants with the aid of the torchlight from the bedroom window, which was shining into the bedroom.
13. PW3 testified that she was woken up by the barking of the dogs and sound of footsteps on 13th January 2018 at 2.00 a.m. She saw lights outside and heard people speaking and knocking at her door demanding that he opens it. On her refusal the door, they started to make a hole on her wall telling her that they will make use of the hole if she refuses to open the door. She opened the door and one man entered the house and hit her on the neck with a panga and then 2 other men followed behind him. She told the Court that she saw the man who hit her with the aid of the D-light lamp and it was the 2nd Appellant herein. The 2nd Appellant demanded that she gives them money and they proceeded to search her mattress for the same. It was her testimony that she recognized the 2nd Appellant vide his face and voice as she knew him very well having been her neighbor. She told the Court that when they search her bedroom and did not find any money the 2nd Appellant took her outside, took her leather jacket, knocked her down, removed her pants and raped her and once he was done he instructed her to head back into her house. She produced in Court her treatment notes as PEXH3 and insisted that it was the 2nd Appellant herein who raped her.
14. On cross-examination by the 1st Appellant, she told the Court that the incident occurred at night at 2.00 a.m. and that she was able to identify both the Appellants.
15. On cross-examination by the 2nd Appellant, she told the Court that she identified the 2nd Appellant as one of the attackers and that the D-light lamp and the torchlight aided her in identifying him. She insisted that she recognized the 2nd Appellant’s voice and that it was the 2nd Appellant who raped. She told the Court that outside there was some moonlight, but she had already seen the Appellants while they were inside the house and that even while outside she saw them.
16. On re-examination, she told the Court that it was the 2nd Appellant who raped her and that the Appellants had not covered their faces. She reiterated that she recognized the 2nd Appellant’s voice and face.
17. PW4 testified that on 12th January 2018 at around 10.00 p.m. while asleep in his house with his wife and children, he heard a voice demanding that he opened his door as the police were outside. He told the Court that he did not respond and then he heard a bang on his door as it was being broken down, and that was when he responded and said that he was inside the house. His window was also broken and a D light lamp shone into his bedroom. The 2nd Appellant entered his sitting room and after the bedroom door gave way from persistent banging, the 2nd Appellant accessed his bedroom. He was armed with a panga and he had a torch. The light in the bedroom was still on and he was able to see the 2nd Appellant well. The 2nd Appellant ordered him to get up and he noticed that he was also carrying a stick. The 2nd Appellant later used the string that had fixed the mosquito net in place to tie his hands together at his back and forced him to lie on the ground. He had ordered him to hand over all his money but he told the 2nd Appellant that he did not have any money with him as he had already paid his children’s school fees. The 2nd Appellant decided to conduct a search in his house and was able to take out Kshs. 3,000/= that was in his trouser that was hanging on the chair by the bedroom. The 2nd Appellant began to hit him with a panga on the back and the head wherefore his wife declared that she had more money in her purse. She gave them the purse that had the Kshs. 500/= and the 2nd Appellant picked up the money from the purse.
18. PW4 testified that the 1st Appellant, Cheparakach, then came into the bedroom while the D-light lamp was still on and he had a gun and a stick with him. He started to search their mattress but did not find anything and he used the handle of an axe to assault him on the legs and he left the 2nd Appellant in the house with them. He told the Court that it was at that point that the neighbours started screaming and from outside, the 1st Appellant shouted at the screaming villagers and shot in the air. He told the Court that the 1st Appellant shot in the air 4 times and the man with the D-light lamp alerted the 2nd Appellant that the situation outside the house was getting out of hand and that they should exit the premises. That the 2nd Appellant then quickly threw away PW4’s wife’s purse and told his colleagues that they should drive away the cows. That upon the exit of the assailants he requested his wife to untie his hands.
19. PW4 told the Court that he then crawled outside and hid in nearby bushes and he heard a neighbor talk to his wife and he returned to the house. He told the Court that the 2nd Appellant also took his cellphone Itel valued at Kshs. 1,200/= and that he was informed that his father, Alfred Chemos Chebonya, was killed. He rushed to his father’s house and found him dead as he had been shot three times. He told the Court that he knew both the Appellants herein very well as the 2nd Appellant was a local boda boda operator and the 1st Appellant had a hotel shop and a farm in the area. He told the Court that he positively recognized the Appellants herein.
20. On cross-examination by the 1st Appellant, PW4 told the Court that he was attacked at around 10.00 p.m. and that he did not know how many the assailants were in number as he only saw 3 people. He maintained that he identified that Appellants with the aid of the D-light lamp shining from his bedroom window and that both of the Appellants also had lights with them. He stated that they were wearing rain coats and marvins on their heads and he was able to also recognize their voices as they spoke a lot during the incident. He told the Court that he saw the 1st Appellant when he entered the room and also as he assaulted him and that he recognized him as he is also a neighbour and that he knows he was the one who shot his father as he was armed with a gun.
21. On cross-examination by the 2nd Appellant, he told the Court that he was attacked on the night of 12th to 13th of January 2018 and that the robbers had lights with them so their identification was through the light coming from the window. He told the Court that the 2nd Appellant wore a maroon jacket and marvin that covered his head, but not his face. He told the Court that the 2nd Appellant’s residence is nearby.
22. On re-examination, he reiterated that he saw the 1st Appellant enter the room and he was about a meter or less away from him. He told the Court that he saw the 1st Appellant when he raised his head after he hit him.
23. PW5 testified that on 13th January 2018, at around 2.30 am while sleeping he heard noises from outside his house and then saw light in the house penetrating from the space between the wall and the roof. He told the Court that his dogs were also barking and he heard knocks on the neighbor’s door and the door was banged opened. He told the Court that his house was next to that of his neighbors and then he heard the intruders state that they were police officers. Shortly after, the door to his house was knocked and his neighbors told the intruders that he was in Chwele and his wife did not open the door. His wife asked the people knocking if they were policemen and they said that they were policemen who wanted to spray chemicals. His door was broken down and the intruders then kicked the bedroom door which was a metal grill and his wife told the intruders that they will not open the door for them. The intruders failed to breakdown the metal door and he stood next to it with a panga. The intruders eventually made a hole in the wall and he then instructed his wife to open their bedroom door while he hid under the bed. He then saw two people enter his bedroom with torch lights and they demanded for money. According to him, one of them attacked his wife as the other who came in headed for where they stored their farm chemicals. He told the Court that the other pointed the torch light under the bed where he had been hidding and he spotted him and loudly declared that PW5 was hiding under the bed. One of the men led his wife outside as the remaining two searched for money in his jacket then the 2 men left. After 20-30 minutes, his wife alerted him that the intruders had left, but she had been raped.
24. It was the evidence of PW5 that he identified the voice of one of the men who demanded money from him as that of the 2nd Appellant herein and told the Court that he had known him for a long time as a neighbor and for a period of 5 years. He also told the Court that he identified the 1st Appellant as he demanded that they open the door, as he was a neighbor and had known him for more than 5 years.
25. On cross-examination by the 1st Appellant, he told the Court that they were attacked at 2.30 a.m. and the attackers were claiming to be police officers. He was categorical that he knew the 1st Appellant and where he resides and he had also leased a butchery to him and they would interact for long periods. He also told the Court that the 1st Appellant had also leased a shamba to him at on me point.
26. On cross-examination by the 2nd Appellant, he told the Court that the attack occurred at 2.30 a.m. and they heard voices demanding that the door be opened and the individuals claimed to be policemen. He told the Court that there was no electricity and the intruders spent 30-40 minutes in his house and they were talking in Swahili. He told the Court that his wife opened the door for the intruders as he hid under the bed and that the 2nd Appellant was a boda boda operate as him and that he has once lent him his motorbike to ride the same.
27. On re-examination, he told the Court that his wife was raped by the 2nd Appellant and that he identified the attackers by their voices.
28. PW6, Dr. Ombogi Heron, testified that he was based at Bungoma County Referral Hospital and he was before the Court to produce the postmortem report for one Alfred Chemos dated 26th January 2018. According to him, the body had 4 penetrating gunshot wounds on the lower limbs and on internal examination, there was a positive finding on the rapture of the nervous system bundle artery supplying fiber and tissue. He told the Court that the cause of death was sever hemorrhage secondary to penetrating gunshot wounds. He produced in Court the postmortem report signed on 26th January 2018 as PEXH7.
29. He also availed before the Court the postmortem report of one Eliud Rotich dated 26th January 2018. According to him, on external examination of the body, he noted presence of deep cut wounds on the posterior aspect of the neck, fracture of the cervical spine, a deep cut wound on the left scapula and 2 cut wound on the lower limbs. On internal examination, he observed that the neck vessel had been depressed leading to upper airways obstructions. His prognosis was that the cause of death was sever injury with pulmonary arrest secondary to assault using sharp and blunt objects. He produced in Court the postmortem report signed on 26th January 2018 as PEXH8.
30. On cross-examination by the 1st Appellant, he told the Court that he performed the postmortem on 26th January 2018, and that the does not know who caused the injuries.
31. On cross-examination by the 2nd Appellant, he told the Court that he has an experience of 7 years and that he did not ask who the culprits were.
32. PW7, Kipsang Masai, testified that he was a clinical officer based at Kimili Sub-County Hospital and he was before the Court to avail the treatment notes and P3 of the patient Lorna Cheruto who was treated on 13th January 2018. It was his evidence that the patient was presented at the facility with a history of rape by two persons known to her on the night of 12th January 2018. On general examination, he noted that the patient complained of slight abdominal pain on the lower pelvic region. On genitalia examination, he observed that there was blood on the outer vaginal oriface laboratory examination, the patient’s urinalysis showed presence of blood, red blood cells and on high vaginal swab there was presence of epithelial cells. He told the Court that the presence of blood cells, indicated injuries and epithelial cells showed that there was sexual activity. It was his testimony that the patient was given PEP, antibiotics and painkillers. He produced in Court Lorna Cheruto’s treatment notes, P3 form filled on 6th August 2018 and outpatient treatment card as PEXH3, PEXH4 and PEXH9 respectively. He confirmed that the P3 form was filled 7 months after her treatment and he used the treatment notes to fill the same.
33. On cross-examination by the 2nd Appellant, he told the Court that he was not related to the Complainant and that she was presented to the facility on 13th January 2018, but the P3 form was filled on 6th August 2018.
34. On re-examination, he told the Court that the Complainant complained that she bled from the rape and that presence of spermatozoa in the victim is ordinarily expected but if the perpetrator did not ejaculate or did wear a condom there will be no spermatozoa.
35. PW8, No. 219061 John Kimathi Mutunga SP, testified that he was the Kericho East Sub-County Criminal Investigations Officer ( CCIO)and that on 18th May 2018 at 8.50 am he received information from the OCS Kericho that a man from Mt. Elgon had surrendered to him and the OCS had requested that he attends to him. He told the OCS to place the man in custody, book him in the OB and then escort him to his office. That when the suspect was taken to his office, he identified himself to him as one Cleophas Kitai, 2nd Appellant herein, from Mt. Elgon and that he was one of the members of SDLF, and that he was apprehensive about his safety as he was been sought by security agents. This witness told the Court that the 2nd Appellant had told him that he had initially fled to Uganda due to security reasons and had recently returned to Kenya to surrender himself. That after consultations with his bosses, he escorted the 2nd Appellant to Nairobi where he handed him over to the flying squad for further investigations.
36. On cross-examination by the 2nd Appellant, he told the Court that he received the 2nd Appellant at around 8.50 am and that the 2nd Appellant had been craving for his safety. He told the Court that the 2nd Appellant informed him that police officers from Mt. Elgon were looking for him and that he feared that they could kill him. He told the Court the he was not aware that the 2nd Appellant was a wanted person.
37. PW9, John Welemba, testified that he was a clinical officer based at Webuye Referral Hospital but prior this his new posting he been at Chwele Sub-County Hospital. He testified that he had examined one Javan Chemos on 13th January 2018 who had been presented with a history of assault with a panga. He observed that he bone injuries on the occipital, left shoulder and on the left thigh, and was bleeding from the back of his head. He noted that the Complainant had a 4 cm cut on his head and there was a swelling on the left of his shoulder and a swelling on the back of his thigh. The Complainant was given medication and his wounds were sutured and this witness wanted to produce the complainant’s treatment notes as an exhibit in Court.
38. The 1st Appellant objected to the production of Javan Chemos treatment card and P3 form stating that he was not served with the same. The Respondent noted that they were not aware that he was never supplied with the same and the trial Court stood down the witness to allow the state time to serve the 1st Appellant with the copies of the treatment notes and P3 form.
39. PW11, No. 53234 Sgt. Maurice Mulwa, testified that he was stationed at Chepkube Police Station but prior to that he had been at Kipsigon Police Station. He testified that on 13th January 2018 the OCS briefed him about a report of shooting on the night of 12th January 2018. That while in the company of his colleagues they proceeded to the scene whereat they found a crowd of people who informed them that they had been attacked by a gang armed with guns and rungs, and that the same gang had killed 2 people. One of the persons who had been killed was Alfred Chemos, whose body they had found outside his house with a gunshot wound on the hip. That they proceeded across the river where they found another body of one Eliud Chemonges about 50 meters from his home. They observed that the body bore cut wounds on the back of the neck. That they collected the two bodies and transported them to the mortuary. Before leaving the scene, he had established that there were some villagers who had been injured and raped.
40. On cross-examination by the 1st Appellant, he told the Court that he visited 2 scenes and that he did not investigate about the perpetrators.
41. On cross-examination by the 2nd Appellant, he told the Court that the incidents occurred from around 10.00 p.m. onwards and they reported to the scene the next day at around 5.00 a.m. He also told the Court that the bodies recovered from the scene were 1-2 kms apart.
42. On re-examination, he told the Court that he never took Lorna to the hospital.
43. PW12, No. 93768 PC Johnso Wanjohi, testified that he was attached to DCI Cheptais and that he was the investigation officer. He recalled on 13th January 2018 at around 5.00 a.m. while in the company of his colleagues they proceeded to Kipsigon area pursuant to a crime report. On arrival they observed that one Alfred Chemos had been killed and his body laid outside his house with a bullet wound on his back. They proceeded to another scene where they found the body of Eliud Rotich which had a cut wound on the back of the neck. That they thereafter proceeded to another scene at Corner Maiti were they found a lady called Lorna Cheruto who alleged that she had been raped. They commenced investigations and recorded witness statements and it was claimed that Timothy Kiptanui Kiati alias Cheparakach, 1st Appellant herein, and his brother Cleophas Ngeiywa Kitai alias Jet Lee, 2nd Appellant herein, were some of the perpetrators. The lady Cheruto alleged that the 2nd Appellant herein was the one who raped her and she was issued with a P3 form which was produced in Court as PEXH4 and her treatment notes from Kimilili Sub-County Hospital as PEXH3. He told the Court that one Javan, son to deceased Alfred, and his wife Jackline claimed to have been attacked by the Appellants herein. The bodies of the deceased persons were taken to Dreamland mortuary and their respective postmortem reports were availed in Court as PEXH7 for Alfred Chemos and PEXH8 for Eliud Rotich. Additionally, he told the Court that Lorna alleged that on the night of 12th -13th of January 2018 her house was raided and Kshs. 1,500/= was stolen from her and her husband concurred with her. They identified the perpetrators as the Appellants before this Court and noted that they had not covered their faces, and Lorna could identify them. That Javan had given them a similar account as he claimed that his hands were bound together with a rope and that there had been enough light wherefore he identified both the Appellants and confirmed that he was robbed Kshs. 3,000/=, his Itel phone worth Kshs. 1,500/= and his wife Jackline was robbed of Kshs. 500/= That witnesses told them that all the Appellants had rungus, pangas and a gun. That after recording the witnesses’ statements they commenced on a manhunt of the perpetrators. That the Appellants availed themselves at the police station on learning that the police were searching for them. He told the Court that the 1st Appellant presented himself at Eldoret Police station while the 2ND Appellant presented himself at Kericho Police Station.
44. On cross-examination by the 1st Appellant, he told the Court that he was the investigating officer and that he was aware that the home of the 1st Appellant was about 5kms from the scene of crime. He told the Court that Javan was the Complainant and that the police visited the homes of the victims and that he was able to identify the 1st Appellant.
45. On cross-examination by the 2nd Appellant, he told the Court that the 2nd Appellant was charged with 8 robberies and rape and that this particular robbery occurred on 12th January 2018. He told the Court that the 2nd Appellant was a neighbor to Javan and they knew each other, and that with the aid of the torches that lit the room Javan and his wife Jackline were able to see him and the 1st Appellant. He told the Court that he visited the home of Lorna and established that it was the 2nd Appellant who raped her.
46. On re-examination, he told the Court that no fire arms were recovered and it was Lorna Cheruto who had been raped.
B.2 Appellants’ evidence
47. The Court duly complied with Section 211 of the Criminal Procedure Code. The Appellants having understood the requirements of the legal provision, opted to give a sworn statement and called no witnesses.
48. The 1st Appellant herein, who testified as DW1, denied the charges leveled against him and told the Court that on 11th January 2018, he was at home and the following day he woke up and headed to work where he met people who told him that there was an incident that occurred in the area. He told the Court that he accompanied people to the scene at Korngotuny and they found police officers there and when they were told to step aside he left and went back home. He maintained that he had continued working until 6th March 2018 when he was summoned to a meeting by the Minister of Interior and when suspects were named his name appeared in the list. He told the Court that he surrendered to the police where the OCS told him that he could not process him so he went back home and on 14th May 2018, he surrendered himself to Eldo
[...truncated]
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. E008 OF 2023
TIMOTHY KIPTANUI KITAI alias CHEPARKACH…..1ST APPELLANT
CLEOPHAS NGEYWO KITAI…………………………....2ND APPELLANT
VERSUS
REPUBLIC……………………………………………………….RESPODENT
(Being an appeal from the judgement of Hon. P.N. Gesora-C.M in Bungoma Criminal Case No. 410 of 2018 dated and delivered on 16th February 2023).
JUDGEMENT
A. Background
1. The Appellants herein are challenging their conviction and their respective sentences of death penalty under Count 1 for the offences of robbery with violence contrary to Section 296 (2) of the Penal Code. Additionally, the 2nd Appellant was sentenced to serve another 10 years imprisonment under Count 9.
2. Particulars of the offence under Count 1 being that on 12th January 2018 at around 10.00 p.m. at Korng’otuny area of Kopsiro Division within Bungoma County, jointly with others not before Court, while armed with dangerous weapons namely AK47 rifles, pangas, rungus and metal bar robbed off BONIFACE KIRUI KIBOI cash Kshs. 20,000/= and at the time of such robbery killed ELUID ROTICH and ALFRED CHEBONYA.
3. Additionally, particulars of the offence under Count 9 being that on 13th January 2018 at around 3.20 a.m. at Korng’otuny area of Kopsiro Division within Bungoma County, the 2Nd Appellant intentionally and unlawfully caused his penis to penetrate the vagina of LORNA CHERUTO without her consent.
4. When arraigned before Court, the Appellants pleaded not guilty to the both Counts. The matter was set down for hearing.
B. Evidence
B.1 Respondent’s Evidence
5. The Respondent’s first witness PW1 testified that he knew both the Appellants herein as the 1st Appellant was known to him as Cheparakachi while the 2nd Appellant as Ngweyo. He recalled that on 12th January 2018, at 10.00 p.m. he heard noises emanating from the home of one Javan and the noise confirmed to him that a gunshot had been fired in the home of one Alfred Chebonya, father of Javan. He told the Court that as a neigbour he woke up and so did other neighbours and while armed with matchets they proceeded with the deceased Eliud Rotich Kiboyi towards the source of the noise. They then heard the voice of the 1st Appellant herein saying that thieves had taken the route towards Uganda. As the deceased lit the torch he also spotted the 2nd Appellant who was screaming that the thieves had taken the Ruanda route. He told the Court that he noticed that the 1st Appellant herein was armed with a gun while the 2nd Appellant had a panga. The 1st Appellant shot the deceased on the right leg and the 2nd Appellant approached the deceased with a panga, and cut him on the back of his neck. He told the Court that he fled the scene and only returned to the home of Alfred at around midnight where he found him dead. It was his testimony that Eliud did not survive the attack. He maintained that he had recognized the voices of the Appellants herein as they were his neighbours and that he also knows the father to the 1st Appellant. He told the Court that the Appellants were about 6-10 meters away from them when they were attacking the victim.
6. on cross-examination by the 1st Appellant, PW1told the Court that nothing was stolen from him and that the scene of crime was at the home of Javan. He maintained that he witnessed the attack from a distance of 10 meters away and that he recognized the Appellants voices and that the deceased, Rotich, had illuminated the assailants with his torch.
7. On cross-examination by the 2nd Appellant, PW1 told the Court that the 2nd Appellant’s home was about 2 kms from his and that it was the 2nd Appellant who cut the deceased. He maintained that he was close enough to see the 2nd Appellant as he was about 10 meters from him and that Eliud Rotich had directed his torch light towards the Appellants. He maintained that as the villagers were screaming for help, the 2nd Appellant was shouting and misdirecting the villagers. This witness testified that he knew the 2nd Appellant very well as he was a boda boda operator who had ferried him on many occasions.
8. On re-examination, PW1 told the Court that he did not light up his torch as he was apprehensive that he too could have been shot in a similar manner to Rotich. He stated that Korgotuny and Cherwadoyi villages border each other. Further that as he took flight, he had turned momentarily, and saw the 2nd Appellant cutting up the deceased as the latter lamented “oh I am dying” in Sabaot language. That the villagers were urging each other to pursue the thieves in the direction that the Appellants were misleading them to.
9. PW2 recalled that on 12th January 2018, at around 10.00 p.m. while sleeping she heard 3 people calling to her husband urging him to open his door complaining of the harsh cold. She told the Court that they hit the window of their bedroom which easily gave way and torch light was directed towards the bedroom. The next thing that happened was that their door was broken down and the intruders gained ingress into the house. It was her testimony that the intruders had torches, a rifle, pangas and rungus and 2 peoples entered the house. According to her the first person was the 2nd Appellant herein and she recognized his voice and face and he was armed with a panga. The 2nd Appellant instructed her husband who was now standing by the bed to stretch out his hand, the 2nd Appellant cut the mosquito net and used it to tie up her husband’s hands together and he then directed him to lie on the floor. The 2nd Appellant ordered him to produce the money that he had in his possession and he then started to hit her husband with a stick on his ribs. She told the Court that the 2nd Appellant then hit her husband on the back and his head, but they did not give out any money. She then told the attackers that they had expended all their money in paying their children’s school fees. Further that as she picked her purse the 2nd Appellant grabbed it and searched through it. It was her testimony that the 2nd Appellant only found Kshs. 500/= which he took and it was at this point that the 1st Appellant walked in and then left. She observed that the 1st Appellant was very restless as he would walk into the bedroom then walk out. She told the Court that she knew the 1st Appellant very well as he ran a shop at Maiti and he was also a farmer and that she has known him for 3 years. The man at the window alerted the 2nd Appellant of the incoming villagers and the 2nd Appellant ransacked her husband’s trousers and found Kshs. 3,000/=. The 2nd Appellant quickly located an axe from under their bed and hit her husband with the handle on the legs and his hands. She told the Court that the 2nd Appellant left their house and was conversing outside with the 3rd person before the arrival of the villagers and that was when she heard a gunshot and the screaming stopped. She told the Court that the invaders shot thrice prior to heading towards her father-in-law’s house, Alfred Chemos.
10. On cross-examination by the 1st Appellant, she told the Court that they were attacked at 10.00 p.m. and that she recognized the 1st Appellant’s voice and saw his face when he entered the house with the help of the 3rd invader’s torch from their bedroom window. She told the Court that the 1st Appellant is from their neighborhood. She confirmed that Alfred was killed but she did not know who killed him.
11. On cross-examination by the 2nd Appellant, she told the Court that she knew the 2nd Appellant very well as he lived about 25 km from her and that he was the one who invaded her house at 10.00 p.m. She told the Court that she was able to identify the 2nd Appellant when he entered their house with the aid of the torchlight coming from the window where the 3rd invader stood.
12. On re-examination, she told the Court that the 1st Appellant is a shopkeeper at Corner Maiti and that she was able to see the Appellants with the aid of the torchlight from the bedroom window, which was shining into the bedroom.
13. PW3 testified that she was woken up by the barking of the dogs and sound of footsteps on 13th January 2018 at 2.00 a.m. She saw lights outside and heard people speaking and knocking at her door demanding that he opens it. On her refusal the door, they started to make a hole on her wall telling her that they will make use of the hole if she refuses to open the door. She opened the door and one man entered the house and hit her on the neck with a panga and then 2 other men followed behind him. She told the Court that she saw the man who hit her with the aid of the D-light lamp and it was the 2nd Appellant herein. The 2nd Appellant demanded that she gives them money and they proceeded to search her mattress for the same. It was her testimony that she recognized the 2nd Appellant vide his face and voice as she knew him very well having been her neighbor. She told the Court that when they search her bedroom and did not find any money the 2nd Appellant took her outside, took her leather jacket, knocked her down, removed her pants and raped her and once he was done he instructed her to head back into her house. She produced in Court her treatment notes as PEXH3 and insisted that it was the 2nd Appellant herein who raped her.
14. On cross-examination by the 1st Appellant, she told the Court that the incident occurred at night at 2.00 a.m. and that she was able to identify both the Appellants.
15. On cross-examination by the 2nd Appellant, she told the Court that she identified the 2nd Appellant as one of the attackers and that the D-light lamp and the torchlight aided her in identifying him. She insisted that she recognized the 2nd Appellant’s voice and that it was the 2nd Appellant who raped. She told the Court that outside there was some moonlight, but she had already seen the Appellants while they were inside the house and that even while outside she saw them.
16. On re-examination, she told the Court that it was the 2nd Appellant who raped her and that the Appellants had not covered their faces. She reiterated that she recognized the 2nd Appellant’s voice and face.
17. PW4 testified that on 12th January 2018 at around 10.00 p.m. while asleep in his house with his wife and children, he heard a voice demanding that he opened his door as the police were outside. He told the Court that he did not respond and then he heard a bang on his door as it was being broken down, and that was when he responded and said that he was inside the house. His window was also broken and a D light lamp shone into his bedroom. The 2nd Appellant entered his sitting room and after the bedroom door gave way from persistent banging, the 2nd Appellant accessed his bedroom. He was armed with a panga and he had a torch. The light in the bedroom was still on and he was able to see the 2nd Appellant well. The 2nd Appellant ordered him to get up and he noticed that he was also carrying a stick. The 2nd Appellant later used the string that had fixed the mosquito net in place to tie his hands together at his back and forced him to lie on the ground. He had ordered him to hand over all his money but he told the 2nd Appellant that he did not have any money with him as he had already paid his children’s school fees. The 2nd Appellant decided to conduct a search in his house and was able to take out Kshs. 3,000/= that was in his trouser that was hanging on the chair by the bedroom. The 2nd Appellant began to hit him with a panga on the back and the head wherefore his wife declared that she had more money in her purse. She gave them the purse that had the Kshs. 500/= and the 2nd Appellant picked up the money from the purse.
18. PW4 testified that the 1st Appellant, Cheparakach, then came into the bedroom while the D-light lamp was still on and he had a gun and a stick with him. He started to search their mattress but did not find anything and he used the handle of an axe to assault him on the legs and he left the 2nd Appellant in the house with them. He told the Court that it was at that point that the neighbours started screaming and from outside, the 1st Appellant shouted at the screaming villagers and shot in the air. He told the Court that the 1st Appellant shot in the air 4 times and the man with the D-light lamp alerted the 2nd Appellant that the situation outside the house was getting out of hand and that they should exit the premises. That the 2nd Appellant then quickly threw away PW4’s wife’s purse and told his colleagues that they should drive away the cows. That upon the exit of the assailants he requested his wife to untie his hands.
19. PW4 told the Court that he then crawled outside and hid in nearby bushes and he heard a neighbor talk to his wife and he returned to the house. He told the Court that the 2nd Appellant also took his cellphone Itel valued at Kshs. 1,200/= and that he was informed that his father, Alfred Chemos Chebonya, was killed. He rushed to his father’s house and found him dead as he had been shot three times. He told the Court that he knew both the Appellants herein very well as the 2nd Appellant was a local boda boda operator and the 1st Appellant had a hotel shop and a farm in the area. He told the Court that he positively recognized the Appellants herein.
20. On cross-examination by the 1st Appellant, PW4 told the Court that he was attacked at around 10.00 p.m. and that he did not know how many the assailants were in number as he only saw 3 people. He maintained that he identified that Appellants with the aid of the D-light lamp shining from his bedroom window and that both of the Appellants also had lights with them. He stated that they were wearing rain coats and marvins on their heads and he was able to also recognize their voices as they spoke a lot during the incident. He told the Court that he saw the 1st Appellant when he entered the room and also as he assaulted him and that he recognized him as he is also a neighbour and that he knows he was the one who shot his father as he was armed with a gun.
21. On cross-examination by the 2nd Appellant, he told the Court that he was attacked on the night of 12th to 13th of January 2018 and that the robbers had lights with them so their identification was through the light coming from the window. He told the Court that the 2nd Appellant wore a maroon jacket and marvin that covered his head, but not his face. He told the Court that the 2nd Appellant’s residence is nearby.
22. On re-examination, he reiterated that he saw the 1st Appellant enter the room and he was about a meter or less away from him. He told the Court that he saw the 1st Appellant when he raised his head after he hit him.
23. PW5 testified that on 13th January 2018, at around 2.30 am while sleeping he heard noises from outside his house and then saw light in the house penetrating from the space between the wall and the roof. He told the Court that his dogs were also barking and he heard knocks on the neighbor’s door and the door was banged opened. He told the Court that his house was next to that of his neighbors and then he heard the intruders state that they were police officers. Shortly after, the door to his house was knocked and his neighbors told the intruders that he was in Chwele and his wife did not open the door. His wife asked the people knocking if they were policemen and they said that they were policemen who wanted to spray chemicals. His door was broken down and the intruders then kicked the bedroom door which was a metal grill and his wife told the intruders that they will not open the door for them. The intruders failed to breakdown the metal door and he stood next to it with a panga. The intruders eventually made a hole in the wall and he then instructed his wife to open their bedroom door while he hid under the bed. He then saw two people enter his bedroom with torch lights and they demanded for money. According to him, one of them attacked his wife as the other who came in headed for where they stored their farm chemicals. He told the Court that the other pointed the torch light under the bed where he had been hidding and he spotted him and loudly declared that PW5 was hiding under the bed. One of the men led his wife outside as the remaining two searched for money in his jacket then the 2 men left. After 20-30 minutes, his wife alerted him that the intruders had left, but she had been raped.
24. It was the evidence of PW5 that he identified the voice of one of the men who demanded money from him as that of the 2nd Appellant herein and told the Court that he had known him for a long time as a neighbor and for a period of 5 years. He also told the Court that he identified the 1st Appellant as he demanded that they open the door, as he was a neighbor and had known him for more than 5 years.
25. On cross-examination by the 1st Appellant, he told the Court that they were attacked at 2.30 a.m. and the attackers were claiming to be police officers. He was categorical that he knew the 1st Appellant and where he resides and he had also leased a butchery to him and they would interact for long periods. He also told the Court that the 1st Appellant had also leased a shamba to him at on me point.
26. On cross-examination by the 2nd Appellant, he told the Court that the attack occurred at 2.30 a.m. and they heard voices demanding that the door be opened and the individuals claimed to be policemen. He told the Court that there was no electricity and the intruders spent 30-40 minutes in his house and they were talking in Swahili. He told the Court that his wife opened the door for the intruders as he hid under the bed and that the 2nd Appellant was a boda boda operate as him and that he has once lent him his motorbike to ride the same.
27. On re-examination, he told the Court that his wife was raped by the 2nd Appellant and that he identified the attackers by their voices.
28. PW6, Dr. Ombogi Heron, testified that he was based at Bungoma County Referral Hospital and he was before the Court to produce the postmortem report for one Alfred Chemos dated 26th January 2018. According to him, the body had 4 penetrating gunshot wounds on the lower limbs and on internal examination, there was a positive finding on the rapture of the nervous system bundle artery supplying fiber and tissue. He told the Court that the cause of death was sever hemorrhage secondary to penetrating gunshot wounds. He produced in Court the postmortem report signed on 26th January 2018 as PEXH7.
29. He also availed before the Court the postmortem report of one Eliud Rotich dated 26th January 2018. According to him, on external examination of the body, he noted presence of deep cut wounds on the posterior aspect of the neck, fracture of the cervical spine, a deep cut wound on the left scapula and 2 cut wound on the lower limbs. On internal examination, he observed that the neck vessel had been depressed leading to upper airways obstructions. His prognosis was that the cause of death was sever injury with pulmonary arrest secondary to assault using sharp and blunt objects. He produced in Court the postmortem report signed on 26th January 2018 as PEXH8.
30. On cross-examination by the 1st Appellant, he told the Court that he performed the postmortem on 26th January 2018, and that the does not know who caused the injuries.
31. On cross-examination by the 2nd Appellant, he told the Court that he has an experience of 7 years and that he did not ask who the culprits were.
32. PW7, Kipsang Masai, testified that he was a clinical officer based at Kimili Sub-County Hospital and he was before the Court to avail the treatment notes and P3 of the patient Lorna Cheruto who was treated on 13th January 2018. It was his evidence that the patient was presented at the facility with a history of rape by two persons known to her on the night of 12th January 2018. On general examination, he noted that the patient complained of slight abdominal pain on the lower pelvic region. On genitalia examination, he observed that there was blood on the outer vaginal oriface laboratory examination, the patient’s urinalysis showed presence of blood, red blood cells and on high vaginal swab there was presence of epithelial cells. He told the Court that the presence of blood cells, indicated injuries and epithelial cells showed that there was sexual activity. It was his testimony that the patient was given PEP, antibiotics and painkillers. He produced in Court Lorna Cheruto’s treatment notes, P3 form filled on 6th August 2018 and outpatient treatment card as PEXH3, PEXH4 and PEXH9 respectively. He confirmed that the P3 form was filled 7 months after her treatment and he used the treatment notes to fill the same.
33. On cross-examination by the 2nd Appellant, he told the Court that he was not related to the Complainant and that she was presented to the facility on 13th January 2018, but the P3 form was filled on 6th August 2018.
34. On re-examination, he told the Court that the Complainant complained that she bled from the rape and that presence of spermatozoa in the victim is ordinarily expected but if the perpetrator did not ejaculate or did wear a condom there will be no spermatozoa.
35. PW8, No. 219061 John Kimathi Mutunga SP, testified that he was the Kericho East Sub-County Criminal Investigations Officer ( CCIO)and that on 18th May 2018 at 8.50 am he received information from the OCS Kericho that a man from Mt. Elgon had surrendered to him and the OCS had requested that he attends to him. He told the OCS to place the man in custody, book him in the OB and then escort him to his office. That when the suspect was taken to his office, he identified himself to him as one Cleophas Kitai, 2nd Appellant herein, from Mt. Elgon and that he was one of the members of SDLF, and that he was apprehensive about his safety as he was been sought by security agents. This witness told the Court that the 2nd Appellant had told him that he had initially fled to Uganda due to security reasons and had recently returned to Kenya to surrender himself. That after consultations with his bosses, he escorted the 2nd Appellant to Nairobi where he handed him over to the flying squad for further investigations.
36. On cross-examination by the 2nd Appellant, he told the Court that he received the 2nd Appellant at around 8.50 am and that the 2nd Appellant had been craving for his safety. He told the Court that the 2nd Appellant informed him that police officers from Mt. Elgon were looking for him and that he feared that they could kill him. He told the Court the he was not aware that the 2nd Appellant was a wanted person.
37. PW9, John Welemba, testified that he was a clinical officer based at Webuye Referral Hospital but prior this his new posting he been at Chwele Sub-County Hospital. He testified that he had examined one Javan Chemos on 13th January 2018 who had been presented with a history of assault with a panga. He observed that he bone injuries on the occipital, left shoulder and on the left thigh, and was bleeding from the back of his head. He noted that the Complainant had a 4 cm cut on his head and there was a swelling on the left of his shoulder and a swelling on the back of his thigh. The Complainant was given medication and his wounds were sutured and this witness wanted to produce the complainant’s treatment notes as an exhibit in Court.
38. The 1st Appellant objected to the production of Javan Chemos treatment card and P3 form stating that he was not served with the same. The Respondent noted that they were not aware that he was never supplied with the same and the trial Court stood down the witness to allow the state time to serve the 1st Appellant with the copies of the treatment notes and P3 form.
39. PW11, No. 53234 Sgt. Maurice Mulwa, testified that he was stationed at Chepkube Police Station but prior to that he had been at Kipsigon Police Station. He testified that on 13th January 2018 the OCS briefed him about a report of shooting on the night of 12th January 2018. That while in the company of his colleagues they proceeded to the scene whereat they found a crowd of people who informed them that they had been attacked by a gang armed with guns and rungs, and that the same gang had killed 2 people. One of the persons who had been killed was Alfred Chemos, whose body they had found outside his house with a gunshot wound on the hip. That they proceeded across the river where they found another body of one Eliud Chemonges about 50 meters from his home. They observed that the body bore cut wounds on the back of the neck. That they collected the two bodies and transported them to the mortuary. Before leaving the scene, he had established that there were some villagers who had been injured and raped.
40. On cross-examination by the 1st Appellant, he told the Court that he visited 2 scenes and that he did not investigate about the perpetrators.
41. On cross-examination by the 2nd Appellant, he told the Court that the incidents occurred from around 10.00 p.m. onwards and they reported to the scene the next day at around 5.00 a.m. He also told the Court that the bodies recovered from the scene were 1-2 kms apart.
42. On re-examination, he told the Court that he never took Lorna to the hospital.
43. PW12, No. 93768 PC Johnso Wanjohi, testified that he was attached to DCI Cheptais and that he was the investigation officer. He recalled on 13th January 2018 at around 5.00 a.m. while in the company of his colleagues they proceeded to Kipsigon area pursuant to a crime report. On arrival they observed that one Alfred Chemos had been killed and his body laid outside his house with a bullet wound on his back. They proceeded to another scene where they found the body of Eliud Rotich which had a cut wound on the back of the neck. That they thereafter proceeded to another scene at Corner Maiti were they found a lady called Lorna Cheruto who alleged that she had been raped. They commenced investigations and recorded witness statements and it was claimed that Timothy Kiptanui Kiati alias Cheparakach, 1st Appellant herein, and his brother Cleophas Ngeiywa Kitai alias Jet Lee, 2nd Appellant herein, were some of the perpetrators. The lady Cheruto alleged that the 2nd Appellant herein was the one who raped her and she was issued with a P3 form which was produced in Court as PEXH4 and her treatment notes from Kimilili Sub-County Hospital as PEXH3. He told the Court that one Javan, son to deceased Alfred, and his wife Jackline claimed to have been attacked by the Appellants herein. The bodies of the deceased persons were taken to Dreamland mortuary and their respective postmortem reports were availed in Court as PEXH7 for Alfred Chemos and PEXH8 for Eliud Rotich. Additionally, he told the Court that Lorna alleged that on the night of 12th -13th of January 2018 her house was raided and Kshs. 1,500/= was stolen from her and her husband concurred with her. They identified the perpetrators as the Appellants before this Court and noted that they had not covered their faces, and Lorna could identify them. That Javan had given them a similar account as he claimed that his hands were bound together with a rope and that there had been enough light wherefore he identified both the Appellants and confirmed that he was robbed Kshs. 3,000/=, his Itel phone worth Kshs. 1,500/= and his wife Jackline was robbed of Kshs. 500/= That witnesses told them that all the Appellants had rungus, pangas and a gun. That after recording the witnesses’ statements they commenced on a manhunt of the perpetrators. That the Appellants availed themselves at the police station on learning that the police were searching for them. He told the Court that the 1st Appellant presented himself at Eldoret Police station while the 2ND Appellant presented himself at Kericho Police Station.
44. On cross-examination by the 1st Appellant, he told the Court that he was the investigating officer and that he was aware that the home of the 1st Appellant was about 5kms from the scene of crime. He told the Court that Javan was the Complainant and that the police visited the homes of the victims and that he was able to identify the 1st Appellant.
45. On cross-examination by the 2nd Appellant, he told the Court that the 2nd Appellant was charged with 8 robberies and rape and that this particular robbery occurred on 12th January 2018. He told the Court that the 2nd Appellant was a neighbor to Javan and they knew each other, and that with the aid of the torches that lit the room Javan and his wife Jackline were able to see him and the 1st Appellant. He told the Court that he visited the home of Lorna and established that it was the 2nd Appellant who raped her.
46. On re-examination, he told the Court that no fire arms were recovered and it was Lorna Cheruto who had been raped.
B.2 Appellants’ evidence
47. The Court duly complied with Section 211 of the Criminal Procedure Code. The Appellants having understood the requirements of the legal provision, opted to give a sworn statement and called no witnesses.
48. The 1st Appellant herein, who testified as DW1, denied the charges leveled against him and told the Court that on 11th January 2018, he was at home and the following day he woke up and headed to work where he met people who told him that there was an incident that occurred in the area. He told the Court that he accompanied people to the scene at Korngotuny and they found police officers there and when they were told to step aside he left and went back home. He maintained that he had continued working until 6th March 2018 when he was summoned to a meeting by the Minister of Interior and when suspects were named his name appeared in the list. He told the Court that he surrendered to the police where the OCS told him that he could not process him so he went back home and on 14th May 2018, he surrendered himself to Eldo
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