https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7150

Werimo alias Ben v Republic (Criminal Appeal E047 of 2023) [2026] KEHC 7150 (KLR) (11 May 2026) (Judgment) Neutral citation: [2026] KEHC 7150 (KLR) Republic of Kenya In the High Court at Kakamega Criminal Appeal E047 of 2023 AC Bett, J May 11, 2026 Between Alfred Abuti Werimo alias Ben Appellant and Republic Respondent (Being an appeal against the Judgement of Hon. T. A. Obutu (SPM) in Mumias SPMCCR. No. E629 of 2021 delivered on 13th September 2023) Judgment Background 1.The Appellant was charged with two counts of robbery with violence and an alternative charge of handling stolen property. The allegation in respect of the first count was that on the night of 30th and 31st day of August 2021, jointly with another, they robbed MM of one mobile phone make Oppo valued at Ksh. 16,000/= the property of the said MM and at the time of such robbery assaulted the said MM. The second count was that on the same night, they jointly robbed MANW of one mobile phone make Vivo valued at Ksh. 15,000/= the property of the said MANW and at the time of such robbery assaulted the said MANW. The Appellant also faced the alternative charge of handling stolen property. He was also charged with a third count of rape, the particulars being that on the night of 30th August and 31st August 2021 he caused his penis to penetrate the vagina of MM. the alternative charge was that of committing an indecent act. 2.The Appellant denied all the charges and after a full hearing, he was convicted and sentenced to serve ten (10) years on the first and second counts and fifteen (15) years on the count of rape. All the sentences were to run concurrently. 3.Being aggrieved with the conviction and sentence, the Appellant filed a petition of appeal in which he raised fourteen (14) grounds of appeal which can be summarized as follows:-a.That the prosecution’s evidence was inconsistent, varied, and false.b.That the prosecution failed to prove its case beyond reasonable doubt.c.That the Appellant’s right to a fair hearing was violated and openly threatened. The Evidence 4.PW1 was MMW who testified that on 30/8/2021, she and MA boarded a matatu from Mumias to go to Kakamega but that along the way, the matatu changed route and so they were forced to alight at a petrol station where they boarded a boda boda. They agreed at a fare of Ksh. 400/= with the Appellant who was the boda boda rider and who informed them that he stayed in Kakamega. They paid Ksh. 100/= to a petrol station. Along the way, the Appellant took a rough road and picked his co-accused whom he claimed was a police officer. PW1 said that as they went, they became suspicious and asked the Appellant to stop so that they could urinate. They had been taken a village. There was a home with a gate and they knocked but a lady shouted at them to leave. The Appellant and his co-accused pulled them from the home. They screamed but no one came to their aid. The Appellant attacked her. She threw her phone and he went and picked it. They put them back on the motorcycle and took them into a house. A mattress was brought into the sitting room and they were threatened with stabbing if they screamed. The 1st Appellant demanded sex. PW1 asked that they use protection. The Appellant then pulled PW1 into the bedroom and forcefully raped her during which process she suffered injuries. 5.PW1 further recounted that after the rape, she dressed up and went to the sitting room where she found her friend suffering an asthmatic attack while naked. She assisted her to dress and their assailants took them and left them near Malaha and drove off with their phones. They approached a home for assistance and a lady responded and gave them a jacket then directed them to Malaha police station where they arrived at 1.00 a.m. There, they were given a place to sleep and the next morning, they went to Shianda Police Station where they recorded their statements then were taken to Makunga hospital for treatment. Afterwards, they were issued with P3 forms which were filled then they were released. A day or two later, they were summoned to identify the Appellant whom she had been able to see at the petrol station and at the house using the phone light, and using the shoes he was wearing. They identified the 2nd Accused two days later. 6.PW1 identified the Appellant’s shoes, the PRC and P3 forms and the motor cycle. PW1 also gave a description of the house in which they were raped. They were taken to the scene where they found a mattress on the floor in the bedroom and MANW recovered an earing and a sim card. PW1 said that she had an Mpesa statement to show that she paid Ksh. 100/= to the petrol filing station through number 254713XXX199. 7.On cross-examination, PW1 said that they met the Appellant at about 8.30 p.m. at the petrol station at Ekero and it was about 45 minutes to one hour later that they realized they were not heading to Kakamega. She denied taking any drink in the house. She said that the Appellant undressed her by force and that although she fought, he overpowered her. She said that the phone was never recovered from the accused and that she had nothing to prove that she owned an Oppo phone. 8.PW2 was MANW and recalled that on the material date at about 8.30 p.m., they boarded a matatu headed to Kakamega from Mumias stage. At Ekero, the driver returned their favour and told them to look for another vehicle. None was forthcoming and after about 20 minutes wait, a rider called Ben beckoned to them and offered to take them to Kakamega at an agreed fare of Ksh. 400/= out of which her friend paid Ksh. 100/= for fuel via Mpesa. They then proceeded and after a while, the rider told them that he was using a short cut due to the curfew. 9.PW2 said that along the way, the rider picked someone whom he said was a police officer. She suspected the duo and told PW1, after which they requested to stop for a short call. They stopped and went to a house whose lady occupant declined to open. The duo dragged them and forcefully caused them to board the motor cycle. They took them to a house and the Appellant lit a torch on his phone and they were pushed into the house. Her friend was pushed into the bedroom by the Appellant who was most aggressive. PW1 came out of the bedroom running but was followed by the Appellant who dragged her in. The 2nd Accused then forcefully raped her after pulling off her trousers. She started having difficulties breathing and the 2nd Accused called PW1 who helped her dress up. They then boarded the motorcycle and were dropped off the way and the rider sped off. They went for help in a nearby house and were given a jacket after which they went to the station where they were given a place to sleep. The next day, they went to Shianda Police Station where they reported and were taken to hospital for treatment and later for the filling of the P3 form. The following day, they identified the Appellant at Shianda and he had the same shoes and the same jacket. On 3/9/2021, they were called and identified the 2nd Accused and she saw the bite mark and he had the same sandals. On 5/9/2021, she went and identified the house and found her earning on the table, and 2 sim cards. PW2 identified the earrings, the sim cards and the PRC and P3 forms. 10.During cross-examination, PW2 said that her Vivo phone was never recovered from the assailants. 11.PW3, a police officer testified that on 31/8/2023 at about 1.00 a.m. he was at Malaha Police Post when two girls arrived in distress. One did not have a shoe and both had been raped. He gave them a place to sleep and advised them to report at Shianda. He was later called upon to record their statements. They informed him that they were University students doing marketing and they had taken a motorcycle to Kakamega and the rider had picked a friend and they took them to a house where they raped them, and later abandoned them after which a certain lady directed them to the police station. 12.A Clinical Officer attached to Makunga Sub-County Hospital testified as PW4 and produced the PRC and P3 forms in respect to the PW1 and PW2. According to him, on 31/8/2021 at 12.20 hours, he received two patients namely MM and MANW. MM reported that she had been raped by an unknown person whose motorcycle she had boarded and who took her and her friend to a certain house and raped them. On examination, the breast region was reddish resulting from physical abrasion. She had bruised abdominal skin and bruises on the upper arms. There were bruises to the elbow area and on the left foot. There was a brownish white foul smell discharge over the vulva. There was negative high vaginal swab and there were cells out of sexual intercourse. They came up with a diagnosis of rape and the patient was treated and referred to the police. 13.PW4 said that the second patient was MANW whose report was similar to that of MW. On examination, her thorax was tender. She had a reddish breast area. The stomach was tender with bruises around the umbilical region. The vulva was reddened with whitish discharge. There was no odour, bruise, laceration or vaginal bleeding. She had bruises on the hip. A swab showed no spermatozoa. There were cells suggestive of sexual intercourse. 14.PW5 was MC who recalled that on the night of 31/8/2021 at about 1.00 .am. she was at her house at Malaha when two girls came knocking and asking for help and a place to sleep. She feared but assisted one of them who was asthmatic with a sweater. She also directed them to the police station. The girls informed her that they had been raped by a “boda boda”, did not have shoes, and did not know where they were. 15.PW6 was Sergeant Stanley Saruoki who testified that on 31/8/2021 at about 8.00 a.m., he was at Shianda Police Station when two ladies went to make a report concerning an incident of robbery and rape. He recounted what the girls told him regarding the incident after which he advised them to go to Makunga Sub-County Hospital where they were issued with P3 forms. He commenced investigations and with the help of members of the public and police informers, he apprehended the 1st Appellant and took him to the police station where he was subjected to an identification parade in which the victims identified him as the assailant. On 2/9/2021, they received information concerning the 2nd suspect and proceeded to arrest him at a Members club in Shianda. The victims were recalled and identified him. 16.PW7 was Polycarp Lutta Kweyu, a Principal Government Analyst in Kisumu with 10 years experience and a Master of Science in Chemistry from the Technical University of Kenya in 2008. He testified that on 8/9/2021, he received samples for DNA profiling which included strands of pubic hair from the two victims and the two suspects, a muddy jungle green leggings trouser, a black legging trouser and buccal swabs from the two suspects. On 13/9/2021, buccal swabs from the two victims were taken. A checked red black and white long sleeved shirt, a mattress and a black cover were also submitted with a request for DNA analysis to relate the items. The witness said that he did his analysis and came up with the following findings:-a.The stains on the green legging trouser tested negative for seminal fluid.b.The white stains on the black leggings trouser, red black white shirt and mattress cover tested positive for seminal fluid (spermatozoa).His conclusions were that:-i.The DNA profile generated from the dark stains from the green legging matched the DNA profile of MAMW.ii.The male DNA profile generated from the spermatozoa from the black leggings and shirt matches the DNA profile of Yusuf Omolo Timo (the second Accused).iii.The male DNA profile generated from the mattress cover matched the DNA profile of the Appellant.iv.The female DNA profile generated from the black legging trouser matched the DNA profile of MANW.The witness produced the DNA report as an exhibit. 17.When placed on their defence, the Appellant and his co-Accused gave sworn statements but did not call any witnesses. 18.The Appellant stated that on 30/8/2021, while enroute home from Mumias, he received a call on reaching Ekero. The call was from MM whom he had met the previous two days and exchanged contacts with. She informed him that they were at Ekero with MA. She called him to Ekero. He went and found them at Ekero where they expressed their wish to go to his house to cook. MA also asked for her friend, the 2nd Accused and he called him and agreed they meet on the road. They proceeded to the 2nd Accused’s house where the girls cooked and they ate and drunk whiskey. The girls demanded Ksh. 500/= each to spend the night with them. They promised to pay them the next morning. He went to sleep with MW in the bedroom while the 2nd Accused remained with MA in the sitting room. The Appellant said that he had sex with MW them slept but between 12.00 a.m. to 1.00 a.m., MW woke him up and told him that MA had suffered an asthma attack. They then agreed to take MA to Kakamega for treatment. After about 10km from [particulars withheld] village, they had a puncture. They left the girls with the motor cycle at Malaha while they went to look for a repairer. On coming back, they found the girls had disappeared and decided to push the motorcycle back to the house. The next morning, they went to Malaha centre where they got information that the girls had been directed to the police station. He was later arrested at Kamasha. The Appellant denied that he took the girls’ phones and said they did not have phones and that he was the one who gave them phones. He insisted that they were friends with the Complainants. When questioned by the trial court, he conceded that two sim cards and an earring were recovered from the house. He also said that when they arrived, it was the 2nd Accused who opened the door. 19.On his part, the 2nd Accused denied that they raped the Complainants. He stated that on the material day, the Appellant called him that their girlfriends were with him at Ekero. They picked him and went to their house where they cooked and ate. He then had a drink then they slept. The Appellant slept in the bedroom while he slept in the sitting room. At night, MA got an asthma attack and they decided to take her to Kakamega but on the way, their motorcycle had a puncture and so they left them near Malaha but on going back, found them missing. He claimed that he did not see the girls with phones. He said he did not see any sim cards. He said they had agreed to pay each girl Ksh. 500/= 20.The appeal was canvassed through written submissions. Appellant’s Submissions 21.The Appellant submitted that the trial Magistrate erred in finding him guilty of robbery with violence when the ingredient of theft was not proved beyond reasonable doubt. He submitted that MM did not prove ownership of the Oppo phone which she claimed to have bought at Ksh. 15,000/=. He argued that no inventory was prepared in respect of the recovered items and signed by himself and that recovery of the exhibits from his house was made in his absence and ought to be rejected pursuant to Article 50 (4) of the Constitution. He also submitted that the Mpesa statement was not produced by its maker contrary to Section 65 (8) (a) (b) (c) of the Evidence Act. 22.The Appellant further submitted that the court erred in imposing the 15 year sentence which is in excess of the prescribed minimum sentence. Respondent’s Submissions 23.The Respondent opposed the appeal and submitted that the elements of robbery with violence were proven beyond reasonable doubt as the theft of the two phones were established. 24.On the offence of rape, the Respondent submitted that there was sufficient evidence including DNA evidence that the Appellant, was properly identified by the Complainants in an identification parade. 25.The Respondent argued that any variations and inconsistencies as to the time and date of the incident were inconsequential to the prosecution’s case as the evidence largely remained consistent and cogent and was well corroborated. 26.As to whether the trial was fair, the Respondent contended that the record shows that the Appellant was informed of the charges in a language they understood were granted bail and during the entire trial, were represented by an able Advocate. 27.Regarding the sentence, the Respondent posits that the same was legal save that the trial court did not comply with the provisions of Section 333 (2) of the Criminal Procedure Code which can be corrected by this court. Analysis and Determination 28.This being a first appeal, the duty of the court is as set out in Okeno v. Republic [1972] EA 32 which is to re-consider and re-evaluate the evidence adduced before the trial court and make its own independent findings without losing sight of the fact that unlike the trial court, it did not have the opportunity to see or hear the witnesses as they testified. 29.The issues that arise for determination in the appeal are:-a.Whether the elements of the offence of robbery with violence was proven beyond reasonable doubt.b.Whether the elements of the offence of rape were proved beyond reasonable doubt.c.Whether Section 333 (2) of the Criminal Procedure Code is applicable. 30.The ingredients to be proven in a charge of robbery with violence contrary to Section 296 were considered in the case of Joseph Kaberia Kahiga & 11 others v. Attorney General [2016] KEHC 2053 (KLR) when the court stated:-“The offence under Section 296(2) of the Penal Code in addition to the ingredients specified under Section 295 of the Penal Code has the following ingredients:(i)The offender is armed with a dangerous or offensive weapon or instrument, or(ii)The offender is accompanied with one or more person(s)(iii)The offender wounds, beats, strikes, or inflicts any other personal violence to any person immediately before or after the time of robbery.” 31.It has been held by the Court of Appeal that any one of the three elements of robbery is necessary to prove the charge. In Dima Denge & others v. Republic [2013] KECA 480 (KLR), the Court of Appeal held that:-“…The elements of the offence under Section 296 (2) are, however, three in number and they are to be read not conjunctively, but disjunctively. One element is enough to found a conviction. This was considered at length by this Court in JOHANA NDUNGU Vs. REPUBLIC Criminal Appeal No. 116 of 1995 (unreported;)“In order to appreciate properly as to what acts constitute an offence under section 296 (2) one must consider the sub-section in conjunction with section 295 of the Penal Code. The essential ingredient of robbery under section 295 is use of or threat to use actual violence against any person or properly at or immediately after to further in any manner the act of stealing. Therefore, the existence of the afore-described ingredients constituting robbery are pre-supposed in the three sets of circumstances prescribed in section 296 (2) which we give below and any one of which if proved will constitute the offence under the sub-section.” 32.It was incumbent on the prosecution to prove that the Appellant stole the phone from the Complainant, that he stole it while armed with a dangerous or offensive weapon, that he was accompanied by another person or that he wounded, beat, struck or inflicted personal violence upon the Complainant immediately before or immediately after the act of robbery. This was elaborated by the Court of Appeal in Ganzi & Another v. Republic [2005] 1 KLR 52. 33.Regarding the submission that ingredient of stealing was not proved, this court notes that the trial court made an analysis of the evidence and arrived at the conclusion that ownership of the phone was proven through production of an M-pesa statement that proved that PW1 had paid Ksh. 100/= at the petrol station on the material date. 34.Section 143 of the Evidence Act stipulates that:-“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.” 35.Despite the absence of independent witnesses to prove that the Complainants had phones which were stolen by the Appellant and his co-Accused, the Complainants corroborated each other in their evidence which was cogent and consistent in material aspects. 36.The evidence of the two Complainants were in turn corroborated by the evidence of the Clinical Officer and that of the Government Analyst, as well as PW3, whom the Complainants tried to seek shelter from after being abandoned on the road by the Appellant, and who directed them to the police station. 37.I have considered the prosecution’s evidence and despite the absence of evidence of ownership of the phones and despite the fact that the Mpesa statements was produced in contravention of Section 65 (8) of the Evidence Act, the totality of the evidence leads to the conclusion that the Complainants were credible witnesses. Their evidence was credible and consistent and the identification of the Appellant free of any possibility of error. 38.Regarding the variation in evidence of the Complainants and other witnesses, I note that the variation is in respect to the time and date that they boarded the matatu to Kakamega and when the incident occurred. 39.It is well settled that discrepancies, contradictions, variations and inconsistencies are expected in any trial and are only fatal if they relate to material facts. In Eric Onyango Odeng v. Republic [2014] KECA 523 (KLR), the Court of Appeal held:-“The hearing before the trial court invariably entails consideration of often contradictory, inconsistent and hotly contested facts. The primary duty of the trial court is to carefully analyse that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, that time-honoured devise for testing the truth or correctness of evidence.” 40.It follows therefore that minor contradictions, discrepancies, and inconsistencies will not affect the outcome of the case unless they are substantial and cannot be reconciled by analysis, or point to deliberate untruthfulness. Notably, the court must take cognizance of the fact that no two individuals will recollect or recount their experience to exactitude. In Philip Nzaka Watu v. Republic [2016] KECA 696 (KLR), the Court of Appeal held that:-“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.” 41.I have reviewed the evidence and I am of the view that the discrepancies and variations in the evidence of the Complainants is expected of young women who underwent the harrowing experience of being attacked and raped by the very people they paid to transport them. The same are minor and inconsequential to the conviction. I am in agreement with the trial court that the Appellant’s defence was raised at a late stage and was misleading. 42.In his defence, the Appellant placed himself in the vicinity of the Complainants. He conceded to having sexual intercourse with PW1 while his co-Accused had sexual intercourse with PW2 but claimed that the intercourse was consensual. However, the Appellant and his co-Accused who were represented by Counsel, never raised this defence during cross-examination of the victims. Moreover, the P3 forms produced by PW4 pointed to some element of force having been used upon PW1 as she had injuries which were inconsistent with consensual sex. These were; tenderness of the bilateral breast region, bruised abdominal skin, tender bruises on the upper areas and bilateral olecranon process region, and bruises of the left foot dorsum. Besides the injuries, her trousers were torn and soiled. The Clinical Officer concluded that she was raped. Her friend PW2 had more extensive injuries which led to the same conclusion of rape. 43.The Appellant contended that the conviction was unsafe as there was no independent evidence. In this case, there was the testimony of the two victims which was corroborated by the evidence of the Clinical Officer and the DNA analysis report. The P3 and Post Rape Care reports confirmed penetration and physical injuries as earlier pointed out. In any event, under Section 124 of the Evidence Act, in a case of sexual offence, the court may proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied the alleged victim is telling the truth. 44.Having said that, I find the evidence against the Appellant in respect to the charges was overwhelming. Contrary to the Appellant’s allegations, the court did not rely on speculative evidence. There was direct, real and forensic evidence that the Appellant did rape and rob PW1. His conviction on the three counts was safe. 45.Regarding the sentences imposed upon the Appellant the trial court imposed a sentence of ten (10) years on the two counts of robbery with violence. Section 296 (2) of the Penal Code provides:-“If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.” 46.As an appellate court, I can only interfere with a sentence of the trial court under limited circumstances only if I find that the sentencing court failed to consider a relevant factor, relied on an irrelevant factor, or imposed a sentence which is illegal or unduly harsh and excessive considering the circumstances of the case. In a nutshell, provided the trial court exercised its discretion judiciously and not arbitrarily, the sentence imposed by the trial court should remain intact. See Wanjama v. Republic [1971] EA 493. 47.In the case of Ogalo S/o Owuora [1954] 2 EACA 70, the Court of Appeal held that:-“This court has powers to interfere with any sentence imposed by a trial court if it is evident that the trial court acted on wrong principles or overlooked some material factor, or the sentence is illegal or manifestly excessive or as to amount to a miscarriage of justice.” 48.In Francis Karioko Muruatetu & Another v. Republic, Katiba Institute & Others (Amicus Curiae) [2021] KESC 31 (KLR), the Supreme court rendered itself regarding the mandatory nature of the death sentence and rendered itself as follows:-“ 14.It should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution. It bears restating that it was a decision involving the two petitioners who approached the court for specific reliefs. The ultimate determination was confined to the issues presented by the petitioners, and as framed by the court. 15.To clear the confusion that exists with regard to the mandatory death sentence in offences other than murder, we direct in respect of other capital offences such as treason under section 40 (3), robbery with violence under section 296 (2), and attempted robbery with violence under section 297 (2) of the Penal Code, that a challenge on the constitutional validity of the mandatory death penalty in such cases should be properly filed, presented, and fully argued before the High Court and escalated to the Court of Appeal, if necessary, at which a similar outcome as that in this case may be reached. Muruatetu as it now stands cannot directly be applicable to those cases.” 49.Following the Muruatetu decision then, the Appellant, having been found guilty of robbery with violence contrary to Section 296 (2), ought to have been sentenced to death. However, the Respondent did not seek an enhancement of sentence and therefore, I will leave it intact. 50.On the offence of rape, the Appellant was sentenced to fifteen (15) years. This was well within the prescribed sentence for the offence. Section 3 (3) of the Sexual Offences Act provides:-“A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.” 51.Taking into account the gravity of the offence, I find that the trial court imposed a light sentence upon the Appellant considering their bestial act that must have traumatized their victims immensely. 52.As to whether the provisions of Section 333 (2) of the Criminal Procedure Code should be applied, I have carefully considered the facts and the penalty imposed on the Appellant. It cannot be gainsaid that as a result of the confusion arising from the Muruatetu decision, the Appellant was lucky to escape the death penalty. I find the sentences, which were prescribed to run concurrently, to be a slap in the wrist for the Appellant. I am of the view that the Appellant should not benefit from the provisions of Section 333 (2) of the Criminal Procedure Code. 53.The upshot is that the appeal against conviction and sentence is dismissed and the Judgement of the trial court upheld. DATED, SIGNED, AND DELIVERED AT KAKAMEGA THIS 11TH DAY OF MAY 2026.A. C. BETTJUDGEIn the presence of:The Appellant in personMs. Akimat for the Respondent/StateCourt Assistant: Polycap