REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. E86 OF 2021
TIMOTHY KIPTANUI KITAI alias CHEPARKACH…..1ST APPELLANT
CLEOPHAS NGEYWO KITAI…………………………....2ND APPELLANT
(Being an appeal from the judgement of Hon. G.P Omondi-P.M in Bungoma Criminal Case No. 746 of 2018 dated and delivered 23rd February 2021).
JUDGEMENT
1. The Appellants herein are challenging their conviction and their respective sentences of 25 years imprisonment for the offence of robbery with violence contrary to Section 296 (2) of the Penal Code. Particulars of the offence being that on the 4th December 2017 at Masaek Village 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 CATHERINE CHEPTEEK her cash Kshs. 12, 480/= and immediately at the time of such robbery used actual violence on the said CATHERINE CHEPTEEK
2. When arraigned before Court, the Appellants pleaded not guilty to the offences. After a full trial, the trial Court established that the Respondent had proven it’s case beyond the requisite standard of proof and thereafter convicted the Appellants accordingly.
3. Being dissatisfied with the conviction and sentence the Appellants now appeal on grounds that; -
i. That they did not plead guilty to the said charges of robbery.
ii. The learned magistrate erred in law and in fact in conducting proceedings that violated the rights of the Appellants contrary to the provisions of the law of Kenya hence null and void
iii. The learned magistrate erred in law and in fact in failing to appreciate that the matter before the Court was not booked in any police station as robbery with violence against the Appellants.
iv. That this matter well known to the members of public who said that the attackers were followed and killed, and the same was supported by the evidence of the investigation officer, Phillip Ripis in OB No. 16 of 4th December 2017 but the trial Magistrate overlooked the same and convicted the Appellants.
v. The learned magistrate erred in law and in fact in acting biasedly by relying on the Prosecution side hiding the unknown witness in a phone like boots during hearing.
vi. The learned magistrate erred in law and in fact in insisting in his judgement that, the Appellants were convicted because the commission was as a result of the gun used yet NELSON REDEMO ref case No. 1314 of 2018 in Court (ii) said that the gun was recovered over three months after the 1st Appellant’s arrest and the possessors killed in the material day.
vii. The learned magistrate erred in law and in fact in failing to analyse the strength of light destiny used in identifying the attackers.
viii. The learned magistrate erred in law and in fact in arriving at a decision basing on evidence that were full of contradictions and without analyzing the same.
ix. The learned magistrate erred in law and in fact by relying on the probation report that collected information from the false sources.
x. That the circumstances surrounding this matter does not support the Prosecution case due to the fact that the Appellants are not neighours as alleged by the witnesses and this is supported by the evidence of Phillip Ripis who concluded that they reside 12 kms away.
xi. That the DCIO of Mt. Elgon lied in Court by delivering unsigned statements alleged to have been recorded by the 1st Appellant yet in case 745 of 2018 the DCIO Kennedy Lumera alleged that the 1st Appellant never wrote any report at the DCI Headquarters, thus contradicting himself.
4. In response to the appeal, the Respondent filed their notice of enhancement of sentence dated 3rd September 2024, wherein they wished for this Court to bear in mind the aggravating circumstances of the case and sentence the Appellants to serve death sentence and/or life imprisonment instead of the 25 years.
Respondent’s evidence at the trial Court
5. According to the Respondent’s case, on 4th December 2017, at around 11.00 p.m. PW1 herein told the Court that he received a call from their D.O. Edward Wanyonyi, notifying him that there were robbers in his area and he proceeded to alert his fellow neighbours, Gibson, Amos and Moses then proceeded back home. According to him, the robbers had attacked a lady in their area. That 20 minutes later, while he was standing at the fence of his home, he saw some people coming from the kitchen side of his home. He recognized them to be Edwin Makali Cherere, Ngeywa Kitai, Isaach Rotich Mukuabu, and Chepkakach, who were his neighbours. His house had light and there was bright moon light which enable him easy recognition of his said neighbours. He told the Court that he saw Edwin head to the window of the main house, the 1st Appellant, Cheparackach, headed to the main door and Isaac cut off the rope tethered to his cow and he then hit it with a machete on it’s back prompting it to run off. He told the Court that 1saac when to the door where the 2nd Appellant, Ngeywa Kitai, was standing while the 1st Appellant went to the kitchen. The 2nd Appellant kicked the door to the main house. This witness testified that he then raised an alarm wherefore the 1st Appellant then fired a gun shot at him but he was not hit as he had sped off to the Administration Police camp situated at Maseek, whereat he found two police officers who later accompanied him back to his house. That while they were on their way, they met with his wife and daughter who were also heading towards the AP camp. He noticed his wife’s right hand bore a cut on her finger and palm and that her daughter, who was with her, had an injury on her head. This witness stated that upon arrival at his residence in the company of the two police officers and they found that two of his children had been killed and one was in a critical condition. He told the Court that once his neighbours heard the gun shots, they fled. That he then took his wife and injured children to the hospital for medical attention while the police ferried the cadavers of his dead children to the morgue. He told the Court that they Appellants stole a sum of Kshs. 12, 480/= from his wife and that the 1st Appellant had a gun while the 2nd Appellant had a machete.
6. On cross-examination by the 1st Appellant told the Court that the 1st Appellant came to him home at about 11.00 p.m. and that the D.O had not mentioned to him any names when he altered him of the robbers. He insisted that he has at the fence of his home, a short fence, and he saw the person who came to his home with the aide of the bright moon light and the light at his house. He told the Court that the 1st Appellant was not wearing a mavin (cap) and that he knew him very well and that he raised an alarm when the 1st Appellant and one Isaac kicked his door. He insisted that he saw 2 people with 2 guns on that day and that the 1st Appellant had a gun and that he did record a statement with the police. He told the Court that the 1st Appellant resided about ½ km away and that he mentioned the names of those who raided his home
7. On cross-examination by the 2nd Appellant, PW1 told the Court that he was kneeling at a short fence when he saw the 2nd Appellant at a distance of about 5 meters away. He insisted that there was enough moon light that illuminated the area and he was able to clearly see the 2nd appellant, who was welding a machete. This witness maintained that the 2nd appellant could not sight him at the spot where he had positioned himself. He said that the 2nd Appellant’s residence was about half a kilometer from his house.
8. On re-examination this witness said that the whereas the Appellants had donned caps on their heads and the same did not cover their faces. He also reiterated that he recognized their voices and that he duly made that disclosure to the police when he was recording his statement. He also told the Court that given his position as a village elder, he knew the 1st and 2nd Appellant well and where they hailed from.
9. PW2 herein recalled that on 4th December 2017, at around 12.00 p.m. while at home some people came and woke up her husband and the voice said open the door and her husband did so, then she heard the voice commanding him to lie on the floor and the person proceeded to hit him with a panga. She told the Court that she was 2 meters away from her husband and she was able to identify the person as the 1st Appellant herein and that he was one speaking in Saboit language. She told the Court that she knew the 2nd Appellant as he operated a boda boda and that she knew him for about 2 years. This witness conducted a dock identification. She told the Court that the 1st Appellant had a gun and had been wearing a long green trouser and sweater. That his face was not covered. Further, she told the Court that she saw the 2nd Appellant herein and that she also knew him as he operated a shop at Corner Maliti and he was also a farmer, and that she knew him for 1 year. She said that the 2nd Appellant was wearing a black trouser and jacket and had on his head a mavin but the same was not covering his face. She told the Court that it was the 2nd Appellant who was commanding her husband while another person who stood at the door, whom she could not identify, was the one who shot her husband. According to her, the attackers took her phone and that of her husband. She told the Court that she waited up to 3 a.m. and that was when she screamed for help. She told the Court that she was able to identify the 2nd Appellant person via moon light and that she did not know the 1st Appellant. She was able to identify Cheparakach and that he was the 1st Accused person who is not a party to this appeal.
10. On cross-examination by the 1st Appellant, PW2 told the Court that the robbers took their phones and that they are not before the Court. Also, she said that her house had no electricity and that the source of light was the torches and the moonlight and that she recognized the appellants’ voices.
11. On cross-examination by the 2nd Appellant, she told the Court that she knows the 2nd Appellant and that he attacked her and her husband at around mid-night. She told the Court that she recognized the 2nd Appellant’s voice and saw his face as there was moon light and that he was the one who killed her husband.
12. On re-examination, she told the Court that at the time of the attack there was moon light and lights from the torch of the Appellants and that she saw what happened to her husband and recognized the voice of the 2nd Appellant as she had known him for 2 years.
13. PW3 testified that on 4th December 2017, at around mid-night while at home asleep some people came to her house demanding that the door be opened or they break it down. Her husband opened the door and she was left seated at the bed and the next thing she heard were gunshots. She told the Court that her house was a two roomed one and that one of the assailants got to where she was and started to search through the bags. She recognized him as the 2nd Appellant and he wore black clothes and a hat that did not cover his face. She told the Court that the 2nd Appellant was a boda boda operator and that she knew him for about 3 or 4 years. That as soon as the appellants left, one of her daughters informed her son and they raised an alarm and proceeded outside to find her husband was dead. She told the Court that when the 2nd Appellant entered her house he had a torch and also there was enough moon light for her to identify him. She told the Court that she also knew the 1st Appellant as he is the brother to the 2nd Appellant and he was standing outside during the whole ordeal and was the one who instructed her to close the door. She insisted that she saw him with the help of the moonlight.
14. On cross-examination by the 1st Appellant, she told the Court that she knew the people who attacked them and that they had torches and there was some moonlight. She told the Court that the 1st Appellant was a neighbor and she had no grudge against him.
15. On cross-examination by the 2nd Appellant, she told the Court that they were attacked at mid-night and her house which is a mud house had no electricity and she saw the attackers with aide of their torch light. She insisted that the 2nd Appellant wore a jacket with black cloth and a wollen hat and that her husband was killed outside the house.
16. On re-examination, she told the Court that she recognized the 1st and 2nd Appellants herein with the aide of moonlight and torchlight.
17. PW4 testified that on 4th December 2017, at 11.30 p.m. while asleep with her husband and their children, her husband received a call from the D.O alerting him of robbers in the area. Her husband proceeded to head outside the house as she lights the one-acre fund solar light, both inside and outside. She told the Court that she heard cry of sheep and gun shots. She later heard footsteps and the door to the house was hit and two people gained access. According to her, the 1st person had a panga and had a jacket and he was light skin and that she knew him very well as the Ngeywa, the 2nd Appellant herein. She pleaded with the 2nd Appellant to forgive them if they did wrong and he proceeded to cut the neck of her first child and cut the 2nd one on the mouth up to the back, neck hand he died. Also, he cut the 3rd child on the back and both hands but he survived. After her failed attempt to escape the 2nd Appellant cut her on her hands and the 1st Appellant told him to leave her alone. According to her, the 1st Appellant had a gun with him and asked if she had any money which he commanded the 2nd Appellant to collect from her. She told the Court that she lost 2 children during this ordeal and that she was able to identify the 1st and 2nd Appellants with the aide of the light in the house and the moon light. Also, she told the Court that she knew the 1st and 2nd Appellants very well.
18. On cross-examination by the 1st Appellant, PW3 told the Court that they were attacked at around 11.30 p.m. and by the time they got to her house her light was on and they also had their torch light on.
19. On cross-examination by the 2nd Appellant, she told the Court that they were attacked at around 11.30 p.m. and by the time they got to her house her light was on and they also had their torch light on. She told the Court that the 2nd Appellant wore jacket and black clothes and was carrying a machete. That the whole ordeal took about 30 minutes.
20. On re-examination, she reiterated that she saw the 1st and 2nd Appellants with the aide of the moon light, torch light and one care fund solar light. Her attackers wore mavins but the same did not cover their faces.
21. PW5 testified that he is in class three and that on 4th December 2017, at around 11 or 12 p.m. while asleep they were attacked by robbers who broke into their house cutting them using a panga. He told the Court that he was cut on the shoulders, both sides, the left ear and head. That he was later rushed to hospital.He told the Court that he knew the person who attacked him as Ngeywa, the 2nd Appellant herein, and with the help of a lamp he was able to see him. He told the Court that the 1st Appellant stood by the door with a machete.
22. On cross-examination by the 1st Appellant, he told the Court that he was a class 3 student and that when the attackers bulldozed their way into their house, the lights were on as it was PW4 who put them on and that he has never seen the 1st Appellant before.
23. On cross-examination by the 2nd Appellant, PW5 told the Court that that their house is a mud one. He told the Court that the attackers had their torch lights on and that the 2nd Appellant had a machete with him but he could not recall what he was wearing.
24. PW6, Dr. Ombogi Fred, testified that he is based at Bungoma Referral Hospital and he was in Court to produce the P3 form of Catherine Cheptek. According to him, she suffered an upper limb fracture of the right wrist joint with a wound on the top and the weapon used was sharp. He approximated the age of the injuries as 14 days. He categorized the degree of injury as main. He produced in Court the P3 form dated 18th December 2017 as PEXH.2, the patient’s treatment card as PEXH.1, the x-ray films showing the injuries as PEXH.3.
25. PW6 further produced the P3 form of Abraham Kanan which indicated that his right ear was chopped off with 2 cuts on the neck, he suffered a fracture of the humerus proximal and multiple cuts on the head. The approximated the date of the injuries as 2 months and 3 weeks and the weapon used was a sharp object and there was open reduction and an internal fixation had been done. He categorized the degree of injury as grievous harm. He produced in Court the P3 form dated 1st March 2018 as PEXH.8, the patient’s treatment book as PEXH.4, the x-ray films showing the injuries as PEXH.6 and discharge summary as PEXH. 5.
26. Moreover, PW6 produced in Court the P3 form of Caren Kanami which indicated that she had one injury on the front face which was duly stitched. He approximated the date of the injuries as 7 days and the weapon used was a sharp. He categorized the degree of injury as harm. He produced in Court the P3 form as PEXH.10.
27. PW6 produced the post mortem report of one Moris Cheptais Totai as a result of the post mortem examination conducted on 15th December 2017. This witness observed that on external appearance the body had a bullet wound on the right shoulder and another one at the back of the head. He concluded that the cause of death was as a result of severe penetrating skull injury. He produced in Court the post mortem report sighed on 15th December 2017 as PEXH. 11.
28. Further, PW6 produced the post mortem report of Jackson Takai Kaprun. On external appearance the body had a bruise on the head, cut wound on the right cheek and right shoulder and that the right shoulder was dislocated. He also observed a deep cut wound on the back of the head. He concluded that the cause of death was as a result of cardio respiratory arrest resulting from multiple cut wounds. He produced in Court the post mortem report signed on 15th December 2017 as PEXH. 13.
29. PW6 did produced the post mortem report of Euja Karian as a result of the post mortem examination conducted on 15th December 2017. He observed that on external appearance there was a deep cut on the head, cut wound on the right cheek and back and a cut wound on the neck. He concluded that the cause of death was as a result of cardio pulmonary arrest due multiple cut wound. He produced in Court the post mortem report sighed on 15th December 2017 as PEXH. 12.
30. This witness also produced the post mortem report of Caleb Chepkel as a result of the post mortem examination conducted on 15th December 2017. He observed that on external appearance the body had a deep cut on the left and right leg, cut on the neck. He concluded that the cause of death was as a result of cardio nonary arrest due to shock from the cut. He produced in Court the post mortem report sighed on 15th December 2017 as PEXH. 4.
31. On cross-examination by the 1st Appellant, he told the Court that as per PEXH. 2 the name of the attacker was not mentioned. That he was conversant with the handwriting and signatures of the doctors who performed the respective examinations.
32. On cross-examination by the 2nd Appellant, he told the Court that he did not fill the PEXH 2 but it was his colleague who filled it in and that he knew his signature well.
33. PW7 testified that on 4th December 2017 from 11 to 12 p.m. while at home asleep, his father alerted them that the Distrct Officer (Assistant County Commissioner) had informed him of robbers in the area and that he was heading out to wake up his neighbours. That hardly had10 minutes lapsed when they heard gun shots and knocks at their door demanding that the same to be opened. The door was broken down and the 2nd Appellant herein was standing in front with the 1st Appellant at the door. The 2nd Appellant had a panga and he knew him very well as a motor bike operator. He told the Court that their house had a solar lighting and he noticed the 1st Appellant had a gun with him. He told the Court that the 1st Appellant wore black clothes, black shirt and trouser, and that he had a hat but he could still see his face while the 2nd Appellant wore a brown trouser with side pockets and his face was also not covered. The 2nd Appellant asked his mother whether she knew him and when she answered in the affirmative, he proceeded to hit her with a panga on the neck and leg. The 2nd Appellant also cut his 2nd brother on the neck up to the mouth then cut his back and wrist. He also cut his 3rd brother on the head, ear and both shoulders. He told the Court that he was also cut on the head. The 1st Appellant asked his mother to surrender the money she had and she gave him 12,000/= which the 2nd Appellant took. This witness told the Court that they only raised an alarm after the robbers left. He told the Court that as a result of the ordeal he lost two of his brothers. He told the Court that he knew the 1st Appellant as a farmer and the 2nd Appellant as a boda boda operator, and that he had no grudge against them.
34. On cross-examination by the 1st Appellant, he told the Court that he knew Cheparakach as he resides in Maseek and that he resided 30 minutes from his home. He told the Court that he identified the 1st Appellant on the day of the robbery with the help of the light that was on in their house.
35. On cross-examination by the 2nd Appellant, PW7 told the Court that he knew the 2nd Appellant for 16 years and that he saw the 2nd Appellant on the day of the incident as the solar light was on and never at any point turned off. He insisted that the 2nd Appellant is a boda boda operator.
36. On re-examination, he told the Court that there was light when their house was attacked and in addition to that another attacker not before the Court had a torch light on. He insisted the attackers were four in number 2 outside and 2 inside the house and he identified the 1st and 2nd Appellants.
37. PW8 and PW9 witnessed the post mortem examination of their respective kins.
38. PW10, Sam Kosgei, testified that he used to be the assistant chief at Tambo location and on 14th May 2018 at around 4.00 p.m. he saw two suspicious people on the road one moving towards him and another away. He beckoned for the one who way walking away and requested for his documents and on conducting a further search he found him with some items and on inspecting his Kenyan ID card and the Ugandan waiting card he noticed they bore different names which he insisted are both his names. The man started to flee and the other man beside him raised an alarm and they apprehended him. The man surrendered himself to him and told him his name was Cheparagakach and he took him to the police station. He notified the investigations officer and the 1st Appellant was apprehended.
39. On cross-examination by the 1st Appellant, PW7 told the Court that after inspecting the 1st Appellant’s identity card he knew it was Timothy Kiptanui Kitai.
40. On cross-examination by the 2nd Appellant, PW7 told the Court that he arrested the 1st Appellant and did not record his voice.
41. PW11, No. 216047 ASP Kennedy Limeera, testified that he is the investigation officer in this matter and was formerly stationed at DCIO Mr. Elgon. According to him, he recalled from 29th June 2017 to 22nd February 2018, there were several incidents of robbery with violence in Mt. Elgon, Cheptais, Kimilili and Sirisia which were organized by gangs armed with guns. Vide intelligence he established that it was a group led by the 1st and 2nd Appellants and that they were using AK 47 rifles and crude weapons. After investigations he established that they were out on a revenge spree against individuals who torched their houses and police informants. Upon the involvement of the Ministry of Internal Security a multi-agency team was created to pursue criminals in Kenya and Uganda and at a tag of Ksh. 1,000,000/= was placed on the head of the 1st Appellant. On 16th May 2018, the 1st Appellant surrendered to Eldoret Police Station and he was taken to Nairobi while on 18th May 2018, the 2nd Appellant surrendered to Kericho Police Station.
42. On cross-examination by the 1st Appellant, PW11 told the Court that on 20th May 2018, at 10.30 a.m. they proceeded to JKIA Police Station where they found the 2nd Appellant and he recorded his statement.
43. On further cross-examination, he told the Court that the 1st Appellants statement was recorded at I.S.D police station and that each station bears its own stamp thus he could not affix that stamp as he does not work there.
44. On cross-examination by the 2nd Appellant, he told the Court that he had not been acquainted to the 1st and 2nd Appellants prior to the incidents under reference.
45. On further cross-examination, he told the Court that the 2nd Appellant’s statement was recorded at JKIA Police Station and he did not stamp it with an official stamp as the stamp then available was for the OCS and given that he was not the OCS, he could not use the said stamp. He maintained that the statement bore his signature and that of the 2nd Appellant.
46. On re-examination, he told the Court that he did not stamp the recorded statements as the available stamp belonged to the head of the station and given that he was simply being accommodated by the said stations, he thus could not use their stamps. He told the Court that he was the DCIO Mt. Elgon when he recorded the statements of the 1st and 2nd Appellants.
47. PW12, No. 61569 Sergeant Philip Ribis, testified that he was the investigating officer of the matter. That on 5th December 2017, at around 1.30 a.m. he received a call from C.I James Owour who alerted him of an incident at Masek Village and in the company of other colleagues they proceeded to the village and on arrival at the home of a resident they interviewed him and they established that there were assailants wielding guns, machetes and clubs who had raided the village. He stated that two children had been chopped to death. They visited the respective scenes and they encountered dead bodies and injured villagers. That members of the public informed them that the assailants were a gang of three. They moved the bodies of the deceased persons to morgues and injured residents were taken to hospitals. On 15th December 2017, the 3 suspects were arrested in different locations with the 1st Appellant surrendering to a former assistant chief who took him to Eldoret Police Station and the 2nd Appellant surrendering to Kericho Police Station.
48. On cross-examination by the 1st Appellant, he told the Court that he arrived at the scene at 2.00 a.m. and the injured had already been taken to the hospital. He told the Court that the complainants who were at scene 1 identified the 1st Appellant by his name.
49. At this juncture the witness was stood over by the trial Court to enable the Respondent provide the witness statement of PW12 to the Appellants.
50. On 9th March 2020, PW1 was recalled for further cross-examination by the 1st Appellant. According to him, the incident occurred on 4th December 2017 and the police came to his home to record his statement. He told the Court that he went to the police station on 4th December 2017 and that he recorded the names of the people who committed the offence. He wrote the name of the 1st Appellant. He recorded his statement on 5th December 2017. He told the Court that he was the complainant and a witness in the matter. He maintained that there was light illuminating the area that enabled him to see the robbers as he hid about 5 meters away. He insisted that he knew the 2nd Appellant as he saw him and that they hailed from the same village.
51. On further cross-examination by the 2nd Appellant, PW1 told the Court that they were attacked on 4th December 2017, while he was outside by the fence, hiding, and that he knew the people who attacked him and his family. He stated that he lives in a grass thatched house but he had lights on.
52. On 9th March 2020, PW4 was recalled for further cross-examination by the 1st Appellant. According to her, the incident occurred on 3rd December 2017, while she was asleep and that she recorded the statement on 8th January 2018, while at the hospital. She insisted that she saw the persons who attacked her and she knew them. She told the Court that the light inside and outside the house was on and that she identified the robbers by their names and facial recognition. She insisted that the 1st Appellant wore normal clothes: shirt, long trouser and jacket and he also had on a mavin.
53. On further cross-examination by the 2nd Appellant, she told the Court that she was attacked on 4th December 2017 at around 11-12 p.m. and that the robbers broke down her door and she was frightened. She insisted that she saw the 2nd Appellant with a panga with the aid of the light in her house and that he was wearing a long trouser and side pockets on and a jacket but did not concentrate of the colour.
54. PW13 No. 219061 Mr. John Kimathi Mutanga S.P, testified that he is currently the Sub County criminal investigations officer Kericho East within Kericho County. He recalled that on 18th May 2018, at about 8.05 a.m. he was informed by the OCS Kericho of a suspect who hailed from Mt Elgon, who had surrendered himself at the police station and that he should book him. That the suspect introduced himself to him as being one Cleophas Ngeywa Kitai, the 2nd Appellant herein. According to him, the man informed him that he was wanted by security officers for various crimes that he had allegedly committed and that being apprehensive of his own safety and imminent arrest, had gone into hiding in
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IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. E86 OF 2021
TIMOTHY KIPTANUI KITAI alias CHEPARKACH…..1ST APPELLANT
CLEOPHAS NGEYWO KITAI…………………………....2ND APPELLANT
(Being an appeal from the judgement of Hon. G.P Omondi-P.M in Bungoma Criminal Case No. 746 of 2018 dated and delivered 23rd February 2021).
JUDGEMENT
1. The Appellants herein are challenging their conviction and their respective sentences of 25 years imprisonment for the offence of robbery with violence contrary to Section 296 (2) of the Penal Code. Particulars of the offence being that on the 4th December 2017 at Masaek Village 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 CATHERINE CHEPTEEK her cash Kshs. 12, 480/= and immediately at the time of such robbery used actual violence on the said CATHERINE CHEPTEEK
2. When arraigned before Court, the Appellants pleaded not guilty to the offences. After a full trial, the trial Court established that the Respondent had proven it’s case beyond the requisite standard of proof and thereafter convicted the Appellants accordingly.
3. Being dissatisfied with the conviction and sentence the Appellants now appeal on grounds that; -
i. That they did not plead guilty to the said charges of robbery.
ii. The learned magistrate erred in law and in fact in conducting proceedings that violated the rights of the Appellants contrary to the provisions of the law of Kenya hence null and void
iii. The learned magistrate erred in law and in fact in failing to appreciate that the matter before the Court was not booked in any police station as robbery with violence against the Appellants.
iv. That this matter well known to the members of public who said that the attackers were followed and killed, and the same was supported by the evidence of the investigation officer, Phillip Ripis in OB No. 16 of 4th December 2017 but the trial Magistrate overlooked the same and convicted the Appellants.
v. The learned magistrate erred in law and in fact in acting biasedly by relying on the Prosecution side hiding the unknown witness in a phone like boots during hearing.
vi. The learned magistrate erred in law and in fact in insisting in his judgement that, the Appellants were convicted because the commission was as a result of the gun used yet NELSON REDEMO ref case No. 1314 of 2018 in Court (ii) said that the gun was recovered over three months after the 1st Appellant’s arrest and the possessors killed in the material day.
vii. The learned magistrate erred in law and in fact in failing to analyse the strength of light destiny used in identifying the attackers.
viii. The learned magistrate erred in law and in fact in arriving at a decision basing on evidence that were full of contradictions and without analyzing the same.
ix. The learned magistrate erred in law and in fact by relying on the probation report that collected information from the false sources.
x. That the circumstances surrounding this matter does not support the Prosecution case due to the fact that the Appellants are not neighours as alleged by the witnesses and this is supported by the evidence of Phillip Ripis who concluded that they reside 12 kms away.
xi. That the DCIO of Mt. Elgon lied in Court by delivering unsigned statements alleged to have been recorded by the 1st Appellant yet in case 745 of 2018 the DCIO Kennedy Lumera alleged that the 1st Appellant never wrote any report at the DCI Headquarters, thus contradicting himself.
4. In response to the appeal, the Respondent filed their notice of enhancement of sentence dated 3rd September 2024, wherein they wished for this Court to bear in mind the aggravating circumstances of the case and sentence the Appellants to serve death sentence and/or life imprisonment instead of the 25 years.
Respondent’s evidence at the trial Court
5. According to the Respondent’s case, on 4th December 2017, at around 11.00 p.m. PW1 herein told the Court that he received a call from their D.O. Edward Wanyonyi, notifying him that there were robbers in his area and he proceeded to alert his fellow neighbours, Gibson, Amos and Moses then proceeded back home. According to him, the robbers had attacked a lady in their area. That 20 minutes later, while he was standing at the fence of his home, he saw some people coming from the kitchen side of his home. He recognized them to be Edwin Makali Cherere, Ngeywa Kitai, Isaach Rotich Mukuabu, and Chepkakach, who were his neighbours. His house had light and there was bright moon light which enable him easy recognition of his said neighbours. He told the Court that he saw Edwin head to the window of the main house, the 1st Appellant, Cheparackach, headed to the main door and Isaac cut off the rope tethered to his cow and he then hit it with a machete on it’s back prompting it to run off. He told the Court that 1saac when to the door where the 2nd Appellant, Ngeywa Kitai, was standing while the 1st Appellant went to the kitchen. The 2nd Appellant kicked the door to the main house. This witness testified that he then raised an alarm wherefore the 1st Appellant then fired a gun shot at him but he was not hit as he had sped off to the Administration Police camp situated at Maseek, whereat he found two police officers who later accompanied him back to his house. That while they were on their way, they met with his wife and daughter who were also heading towards the AP camp. He noticed his wife’s right hand bore a cut on her finger and palm and that her daughter, who was with her, had an injury on her head. This witness stated that upon arrival at his residence in the company of the two police officers and they found that two of his children had been killed and one was in a critical condition. He told the Court that once his neighbours heard the gun shots, they fled. That he then took his wife and injured children to the hospital for medical attention while the police ferried the cadavers of his dead children to the morgue. He told the Court that they Appellants stole a sum of Kshs. 12, 480/= from his wife and that the 1st Appellant had a gun while the 2nd Appellant had a machete.
6. On cross-examination by the 1st Appellant told the Court that the 1st Appellant came to him home at about 11.00 p.m. and that the D.O had not mentioned to him any names when he altered him of the robbers. He insisted that he has at the fence of his home, a short fence, and he saw the person who came to his home with the aide of the bright moon light and the light at his house. He told the Court that the 1st Appellant was not wearing a mavin (cap) and that he knew him very well and that he raised an alarm when the 1st Appellant and one Isaac kicked his door. He insisted that he saw 2 people with 2 guns on that day and that the 1st Appellant had a gun and that he did record a statement with the police. He told the Court that the 1st Appellant resided about ½ km away and that he mentioned the names of those who raided his home
7. On cross-examination by the 2nd Appellant, PW1 told the Court that he was kneeling at a short fence when he saw the 2nd Appellant at a distance of about 5 meters away. He insisted that there was enough moon light that illuminated the area and he was able to clearly see the 2nd appellant, who was welding a machete. This witness maintained that the 2nd appellant could not sight him at the spot where he had positioned himself. He said that the 2nd Appellant’s residence was about half a kilometer from his house.
8. On re-examination this witness said that the whereas the Appellants had donned caps on their heads and the same did not cover their faces. He also reiterated that he recognized their voices and that he duly made that disclosure to the police when he was recording his statement. He also told the Court that given his position as a village elder, he knew the 1st and 2nd Appellant well and where they hailed from.
9. PW2 herein recalled that on 4th December 2017, at around 12.00 p.m. while at home some people came and woke up her husband and the voice said open the door and her husband did so, then she heard the voice commanding him to lie on the floor and the person proceeded to hit him with a panga. She told the Court that she was 2 meters away from her husband and she was able to identify the person as the 1st Appellant herein and that he was one speaking in Saboit language. She told the Court that she knew the 2nd Appellant as he operated a boda boda and that she knew him for about 2 years. This witness conducted a dock identification. She told the Court that the 1st Appellant had a gun and had been wearing a long green trouser and sweater. That his face was not covered. Further, she told the Court that she saw the 2nd Appellant herein and that she also knew him as he operated a shop at Corner Maliti and he was also a farmer, and that she knew him for 1 year. She said that the 2nd Appellant was wearing a black trouser and jacket and had on his head a mavin but the same was not covering his face. She told the Court that it was the 2nd Appellant who was commanding her husband while another person who stood at the door, whom she could not identify, was the one who shot her husband. According to her, the attackers took her phone and that of her husband. She told the Court that she waited up to 3 a.m. and that was when she screamed for help. She told the Court that she was able to identify the 2nd Appellant person via moon light and that she did not know the 1st Appellant. She was able to identify Cheparakach and that he was the 1st Accused person who is not a party to this appeal.
10. On cross-examination by the 1st Appellant, PW2 told the Court that the robbers took their phones and that they are not before the Court. Also, she said that her house had no electricity and that the source of light was the torches and the moonlight and that she recognized the appellants’ voices.
11. On cross-examination by the 2nd Appellant, she told the Court that she knows the 2nd Appellant and that he attacked her and her husband at around mid-night. She told the Court that she recognized the 2nd Appellant’s voice and saw his face as there was moon light and that he was the one who killed her husband.
12. On re-examination, she told the Court that at the time of the attack there was moon light and lights from the torch of the Appellants and that she saw what happened to her husband and recognized the voice of the 2nd Appellant as she had known him for 2 years.
13. PW3 testified that on 4th December 2017, at around mid-night while at home asleep some people came to her house demanding that the door be opened or they break it down. Her husband opened the door and she was left seated at the bed and the next thing she heard were gunshots. She told the Court that her house was a two roomed one and that one of the assailants got to where she was and started to search through the bags. She recognized him as the 2nd Appellant and he wore black clothes and a hat that did not cover his face. She told the Court that the 2nd Appellant was a boda boda operator and that she knew him for about 3 or 4 years. That as soon as the appellants left, one of her daughters informed her son and they raised an alarm and proceeded outside to find her husband was dead. She told the Court that when the 2nd Appellant entered her house he had a torch and also there was enough moon light for her to identify him. She told the Court that she also knew the 1st Appellant as he is the brother to the 2nd Appellant and he was standing outside during the whole ordeal and was the one who instructed her to close the door. She insisted that she saw him with the help of the moonlight.
14. On cross-examination by the 1st Appellant, she told the Court that she knew the people who attacked them and that they had torches and there was some moonlight. She told the Court that the 1st Appellant was a neighbor and she had no grudge against him.
15. On cross-examination by the 2nd Appellant, she told the Court that they were attacked at mid-night and her house which is a mud house had no electricity and she saw the attackers with aide of their torch light. She insisted that the 2nd Appellant wore a jacket with black cloth and a wollen hat and that her husband was killed outside the house.
16. On re-examination, she told the Court that she recognized the 1st and 2nd Appellants herein with the aide of moonlight and torchlight.
17. PW4 testified that on 4th December 2017, at 11.30 p.m. while asleep with her husband and their children, her husband received a call from the D.O alerting him of robbers in the area. Her husband proceeded to head outside the house as she lights the one-acre fund solar light, both inside and outside. She told the Court that she heard cry of sheep and gun shots. She later heard footsteps and the door to the house was hit and two people gained access. According to her, the 1st person had a panga and had a jacket and he was light skin and that she knew him very well as the Ngeywa, the 2nd Appellant herein. She pleaded with the 2nd Appellant to forgive them if they did wrong and he proceeded to cut the neck of her first child and cut the 2nd one on the mouth up to the back, neck hand he died. Also, he cut the 3rd child on the back and both hands but he survived. After her failed attempt to escape the 2nd Appellant cut her on her hands and the 1st Appellant told him to leave her alone. According to her, the 1st Appellant had a gun with him and asked if she had any money which he commanded the 2nd Appellant to collect from her. She told the Court that she lost 2 children during this ordeal and that she was able to identify the 1st and 2nd Appellants with the aide of the light in the house and the moon light. Also, she told the Court that she knew the 1st and 2nd Appellants very well.
18. On cross-examination by the 1st Appellant, PW3 told the Court that they were attacked at around 11.30 p.m. and by the time they got to her house her light was on and they also had their torch light on.
19. On cross-examination by the 2nd Appellant, she told the Court that they were attacked at around 11.30 p.m. and by the time they got to her house her light was on and they also had their torch light on. She told the Court that the 2nd Appellant wore jacket and black clothes and was carrying a machete. That the whole ordeal took about 30 minutes.
20. On re-examination, she reiterated that she saw the 1st and 2nd Appellants with the aide of the moon light, torch light and one care fund solar light. Her attackers wore mavins but the same did not cover their faces.
21. PW5 testified that he is in class three and that on 4th December 2017, at around 11 or 12 p.m. while asleep they were attacked by robbers who broke into their house cutting them using a panga. He told the Court that he was cut on the shoulders, both sides, the left ear and head. That he was later rushed to hospital.He told the Court that he knew the person who attacked him as Ngeywa, the 2nd Appellant herein, and with the help of a lamp he was able to see him. He told the Court that the 1st Appellant stood by the door with a machete.
22. On cross-examination by the 1st Appellant, he told the Court that he was a class 3 student and that when the attackers bulldozed their way into their house, the lights were on as it was PW4 who put them on and that he has never seen the 1st Appellant before.
23. On cross-examination by the 2nd Appellant, PW5 told the Court that that their house is a mud one. He told the Court that the attackers had their torch lights on and that the 2nd Appellant had a machete with him but he could not recall what he was wearing.
24. PW6, Dr. Ombogi Fred, testified that he is based at Bungoma Referral Hospital and he was in Court to produce the P3 form of Catherine Cheptek. According to him, she suffered an upper limb fracture of the right wrist joint with a wound on the top and the weapon used was sharp. He approximated the age of the injuries as 14 days. He categorized the degree of injury as main. He produced in Court the P3 form dated 18th December 2017 as PEXH.2, the patient’s treatment card as PEXH.1, the x-ray films showing the injuries as PEXH.3.
25. PW6 further produced the P3 form of Abraham Kanan which indicated that his right ear was chopped off with 2 cuts on the neck, he suffered a fracture of the humerus proximal and multiple cuts on the head. The approximated the date of the injuries as 2 months and 3 weeks and the weapon used was a sharp object and there was open reduction and an internal fixation had been done. He categorized the degree of injury as grievous harm. He produced in Court the P3 form dated 1st March 2018 as PEXH.8, the patient’s treatment book as PEXH.4, the x-ray films showing the injuries as PEXH.6 and discharge summary as PEXH. 5.
26. Moreover, PW6 produced in Court the P3 form of Caren Kanami which indicated that she had one injury on the front face which was duly stitched. He approximated the date of the injuries as 7 days and the weapon used was a sharp. He categorized the degree of injury as harm. He produced in Court the P3 form as PEXH.10.
27. PW6 produced the post mortem report of one Moris Cheptais Totai as a result of the post mortem examination conducted on 15th December 2017. This witness observed that on external appearance the body had a bullet wound on the right shoulder and another one at the back of the head. He concluded that the cause of death was as a result of severe penetrating skull injury. He produced in Court the post mortem report sighed on 15th December 2017 as PEXH. 11.
28. Further, PW6 produced the post mortem report of Jackson Takai Kaprun. On external appearance the body had a bruise on the head, cut wound on the right cheek and right shoulder and that the right shoulder was dislocated. He also observed a deep cut wound on the back of the head. He concluded that the cause of death was as a result of cardio respiratory arrest resulting from multiple cut wounds. He produced in Court the post mortem report signed on 15th December 2017 as PEXH. 13.
29. PW6 did produced the post mortem report of Euja Karian as a result of the post mortem examination conducted on 15th December 2017. He observed that on external appearance there was a deep cut on the head, cut wound on the right cheek and back and a cut wound on the neck. He concluded that the cause of death was as a result of cardio pulmonary arrest due multiple cut wound. He produced in Court the post mortem report sighed on 15th December 2017 as PEXH. 12.
30. This witness also produced the post mortem report of Caleb Chepkel as a result of the post mortem examination conducted on 15th December 2017. He observed that on external appearance the body had a deep cut on the left and right leg, cut on the neck. He concluded that the cause of death was as a result of cardio nonary arrest due to shock from the cut. He produced in Court the post mortem report sighed on 15th December 2017 as PEXH. 4.
31. On cross-examination by the 1st Appellant, he told the Court that as per PEXH. 2 the name of the attacker was not mentioned. That he was conversant with the handwriting and signatures of the doctors who performed the respective examinations.
32. On cross-examination by the 2nd Appellant, he told the Court that he did not fill the PEXH 2 but it was his colleague who filled it in and that he knew his signature well.
33. PW7 testified that on 4th December 2017 from 11 to 12 p.m. while at home asleep, his father alerted them that the Distrct Officer (Assistant County Commissioner) had informed him of robbers in the area and that he was heading out to wake up his neighbours. That hardly had10 minutes lapsed when they heard gun shots and knocks at their door demanding that the same to be opened. The door was broken down and the 2nd Appellant herein was standing in front with the 1st Appellant at the door. The 2nd Appellant had a panga and he knew him very well as a motor bike operator. He told the Court that their house had a solar lighting and he noticed the 1st Appellant had a gun with him. He told the Court that the 1st Appellant wore black clothes, black shirt and trouser, and that he had a hat but he could still see his face while the 2nd Appellant wore a brown trouser with side pockets and his face was also not covered. The 2nd Appellant asked his mother whether she knew him and when she answered in the affirmative, he proceeded to hit her with a panga on the neck and leg. The 2nd Appellant also cut his 2nd brother on the neck up to the mouth then cut his back and wrist. He also cut his 3rd brother on the head, ear and both shoulders. He told the Court that he was also cut on the head. The 1st Appellant asked his mother to surrender the money she had and she gave him 12,000/= which the 2nd Appellant took. This witness told the Court that they only raised an alarm after the robbers left. He told the Court that as a result of the ordeal he lost two of his brothers. He told the Court that he knew the 1st Appellant as a farmer and the 2nd Appellant as a boda boda operator, and that he had no grudge against them.
34. On cross-examination by the 1st Appellant, he told the Court that he knew Cheparakach as he resides in Maseek and that he resided 30 minutes from his home. He told the Court that he identified the 1st Appellant on the day of the robbery with the help of the light that was on in their house.
35. On cross-examination by the 2nd Appellant, PW7 told the Court that he knew the 2nd Appellant for 16 years and that he saw the 2nd Appellant on the day of the incident as the solar light was on and never at any point turned off. He insisted that the 2nd Appellant is a boda boda operator.
36. On re-examination, he told the Court that there was light when their house was attacked and in addition to that another attacker not before the Court had a torch light on. He insisted the attackers were four in number 2 outside and 2 inside the house and he identified the 1st and 2nd Appellants.
37. PW8 and PW9 witnessed the post mortem examination of their respective kins.
38. PW10, Sam Kosgei, testified that he used to be the assistant chief at Tambo location and on 14th May 2018 at around 4.00 p.m. he saw two suspicious people on the road one moving towards him and another away. He beckoned for the one who way walking away and requested for his documents and on conducting a further search he found him with some items and on inspecting his Kenyan ID card and the Ugandan waiting card he noticed they bore different names which he insisted are both his names. The man started to flee and the other man beside him raised an alarm and they apprehended him. The man surrendered himself to him and told him his name was Cheparagakach and he took him to the police station. He notified the investigations officer and the 1st Appellant was apprehended.
39. On cross-examination by the 1st Appellant, PW7 told the Court that after inspecting the 1st Appellant’s identity card he knew it was Timothy Kiptanui Kitai.
40. On cross-examination by the 2nd Appellant, PW7 told the Court that he arrested the 1st Appellant and did not record his voice.
41. PW11, No. 216047 ASP Kennedy Limeera, testified that he is the investigation officer in this matter and was formerly stationed at DCIO Mr. Elgon. According to him, he recalled from 29th June 2017 to 22nd February 2018, there were several incidents of robbery with violence in Mt. Elgon, Cheptais, Kimilili and Sirisia which were organized by gangs armed with guns. Vide intelligence he established that it was a group led by the 1st and 2nd Appellants and that they were using AK 47 rifles and crude weapons. After investigations he established that they were out on a revenge spree against individuals who torched their houses and police informants. Upon the involvement of the Ministry of Internal Security a multi-agency team was created to pursue criminals in Kenya and Uganda and at a tag of Ksh. 1,000,000/= was placed on the head of the 1st Appellant. On 16th May 2018, the 1st Appellant surrendered to Eldoret Police Station and he was taken to Nairobi while on 18th May 2018, the 2nd Appellant surrendered to Kericho Police Station.
42. On cross-examination by the 1st Appellant, PW11 told the Court that on 20th May 2018, at 10.30 a.m. they proceeded to JKIA Police Station where they found the 2nd Appellant and he recorded his statement.
43. On further cross-examination, he told the Court that the 1st Appellants statement was recorded at I.S.D police station and that each station bears its own stamp thus he could not affix that stamp as he does not work there.
44. On cross-examination by the 2nd Appellant, he told the Court that he had not been acquainted to the 1st and 2nd Appellants prior to the incidents under reference.
45. On further cross-examination, he told the Court that the 2nd Appellant’s statement was recorded at JKIA Police Station and he did not stamp it with an official stamp as the stamp then available was for the OCS and given that he was not the OCS, he could not use the said stamp. He maintained that the statement bore his signature and that of the 2nd Appellant.
46. On re-examination, he told the Court that he did not stamp the recorded statements as the available stamp belonged to the head of the station and given that he was simply being accommodated by the said stations, he thus could not use their stamps. He told the Court that he was the DCIO Mt. Elgon when he recorded the statements of the 1st and 2nd Appellants.
47. PW12, No. 61569 Sergeant Philip Ribis, testified that he was the investigating officer of the matter. That on 5th December 2017, at around 1.30 a.m. he received a call from C.I James Owour who alerted him of an incident at Masek Village and in the company of other colleagues they proceeded to the village and on arrival at the home of a resident they interviewed him and they established that there were assailants wielding guns, machetes and clubs who had raided the village. He stated that two children had been chopped to death. They visited the respective scenes and they encountered dead bodies and injured villagers. That members of the public informed them that the assailants were a gang of three. They moved the bodies of the deceased persons to morgues and injured residents were taken to hospitals. On 15th December 2017, the 3 suspects were arrested in different locations with the 1st Appellant surrendering to a former assistant chief who took him to Eldoret Police Station and the 2nd Appellant surrendering to Kericho Police Station.
48. On cross-examination by the 1st Appellant, he told the Court that he arrived at the scene at 2.00 a.m. and the injured had already been taken to the hospital. He told the Court that the complainants who were at scene 1 identified the 1st Appellant by his name.
49. At this juncture the witness was stood over by the trial Court to enable the Respondent provide the witness statement of PW12 to the Appellants.
50. On 9th March 2020, PW1 was recalled for further cross-examination by the 1st Appellant. According to him, the incident occurred on 4th December 2017 and the police came to his home to record his statement. He told the Court that he went to the police station on 4th December 2017 and that he recorded the names of the people who committed the offence. He wrote the name of the 1st Appellant. He recorded his statement on 5th December 2017. He told the Court that he was the complainant and a witness in the matter. He maintained that there was light illuminating the area that enabled him to see the robbers as he hid about 5 meters away. He insisted that he knew the 2nd Appellant as he saw him and that they hailed from the same village.
51. On further cross-examination by the 2nd Appellant, PW1 told the Court that they were attacked on 4th December 2017, while he was outside by the fence, hiding, and that he knew the people who attacked him and his family. He stated that he lives in a grass thatched house but he had lights on.
52. On 9th March 2020, PW4 was recalled for further cross-examination by the 1st Appellant. According to her, the incident occurred on 3rd December 2017, while she was asleep and that she recorded the statement on 8th January 2018, while at the hospital. She insisted that she saw the persons who attacked her and she knew them. She told the Court that the light inside and outside the house was on and that she identified the robbers by their names and facial recognition. She insisted that the 1st Appellant wore normal clothes: shirt, long trouser and jacket and he also had on a mavin.
53. On further cross-examination by the 2nd Appellant, she told the Court that she was attacked on 4th December 2017 at around 11-12 p.m. and that the robbers broke down her door and she was frightened. She insisted that she saw the 2nd Appellant with a panga with the aid of the light in her house and that he was wearing a long trouser and side pockets on and a jacket but did not concentrate of the colour.
54. PW13 No. 219061 Mr. John Kimathi Mutanga S.P, testified that he is currently the Sub County criminal investigations officer Kericho East within Kericho County. He recalled that on 18th May 2018, at about 8.05 a.m. he was informed by the OCS Kericho of a suspect who hailed from Mt Elgon, who had surrendered himself at the police station and that he should book him. That the suspect introduced himself to him as being one Cleophas Ngeywa Kitai, the 2nd Appellant herein. According to him, the man informed him that he was wanted by security officers for various crimes that he had allegedly committed and that being apprehensive of his own safety and imminent arrest, had gone into hiding in
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