https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12228

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **CRIMINAL APPEAL NO. 18 OF 2019** **ISAAC MAIYO BETT …………………………………………1ST APPELLANT** **GILBERT MANASSE LIME …………………………………2ND APPELLANT** **JOSPHAT KIPRUTO BETT …………………………………3RD APPELLANT** **VERSUS** **REPUBLIC ………………………………………………………RESPONDENT** **(Being an appeal from the judgment of Hon. H. O. Barasa (PM) in Eldoret CMCCR No. 4330 of 2016, delivered on 21/01/2019)** **JUDGMENT** 1. The Appellants and others not before Court were jointly charged for the following offences: 2. In **Count I,** all the Appellants were jointly charged with the offence of **Robbery with violence** contrary to **Section 295** as read with **Section 296 (2) of the Penal Code**. The particulars of the charge were that on the 3rd day of July 2016 at Bandari Village, Mwamba sub-location, Lugari sub-county within Kakamega County, the accused persons jointly while armed with offensive weapons, namely, rungus, pangas and iron bars robbed **Belinda Nafula Wamalwa** of five mobile phones, two Television sets, one DVD, one Home Theatre, one laptop, one play station, three sets of curtain, three pairs of sports shoes, two pairs of Safari boots, eight chickens, 7 geese, six glasses, one Turkey, one black Jacket, one 13 kgs Gas Cylinder and two suit cases all valued at Kshs.200,000/=, the property of **Belinda Nafula Wamalwa**, and immediately before the time of such robbery, used actual violence against the said **Belinda Nafula Wamalwa**. 3. The 1st (the 1st Appellant), 6th , and 7th (2nd Appellant) accused persons also faced an alternative charge to the first count. It was stated that on the 17th day of July 2016 at Kosachei Village, Turbo sub-location, in Eldoret West Sub-County within Uasin Gishu County, the 1st accused otherwise than in the course of stealing dishonestly retained one suit-case and one mobile phone knowing them to be stolen property. Regarding the 6th accused, it was stated that on the 9th day of July 2016 at Kosachei village, Turbo sub-location, in Eldoret West Sub-County within Uasin-Gishu County, the 6th accused otherwise than in the course of stealing dishonestly retained 2 pairs of sports shoes, 1 set of curtains and 6 glasses knowing them to be stolen properties. As regards the 7th accused, it was stated that on the 6th day of September 2016, at Panpaper Trading Centre, Mautuma location, in Lugari Sub-County, within Kakamega County, the 7th accused otherwise than in the course of stealing dishonestly retained one DVD player make LG-DP132 knowing it to be stolen property. 4. In **Count II**, the 1st (the 1st Appellant), 2nd , 3rd , 4th , 5th , 7th (2nd Appellant) and 8th (3rd Appellant) accused persons were jointly charged with the offence of **Robbery with** **Violence Contrary to Section 296 (2) of the Penal Code**. The particulars were that on the 3rd day of July 2016 at Bandari Village, Mwamba sub-location, Lugari sub-county, within Kakamega County, the said accused persons jointly while armed with offensive weapons namely, rungus, pangas, and iron bars robbed **Silvia Khisa** of one mobile phone (make- Disco) valued at Kshs.5,000/=, the property of **Silvia Khisa** and immediately before the time of such robbery used actual violence to the said **Silvia Khisa.** 5. In **Count III,** the 1st (the 1st Appellant), 2nd , 3rd , 4th , 5th , 7th (the 2nd Appellant) and 8th (the 3rd Appellant) accused persons were charged with the offence of **Robbery with Violence Contrary to Section 296 (2) of the Penal Code.** The particulars were that on the 3rd day of July 2016 at Bandari Village, Mwamba sub-location, Lugari sub-county, within Kakamega County, the aforesaid accused persons jointly while armed with offensive weapons, namely rungus, pangas and iron bars robbed **Danson Khaleha Luvuse** of one mobile phone valued at Kshs.1,800/= and immediately before the time of such robbery used actual violence to the said **Danson Khaleha Luvuse**. 6. In **Count IV,** the 1st (the 1st Appellant), 7th (2nd Appellant) and 8th (the 3rd Appellant) accused persons were charged with the offence of **Gang Defilement** contrary to **Section 10 of the Sexual Offences Act, No 3 of 2006.** The particulars were that on the 3rd day of July 2016 at Bandari village, Mwamba sub-location, Lugari sub-county, within Kakamega County, the said accused persons alternately, intentionally and unlawfully caused their respective penises to penetrate the vagina of S.K, a girl aged 17 years. In the alternative, they were charged with committing an indecent act with a child contrary to **Section 11 (1) of the Sexual Act.** The particulars were that on the said date and place, the aforementioned accused persons alternately, indecently and unlawfully touched the vagina of **S.K,** a child aged 17 years with their penises. 7. In **Count V,** the 1st (the 1st Appellant), 7th (2nd Appellant) and 8th (the 3rd Appellant) accused persons were charged with **gang defilement contrary** to **Section 10 of the Sexual Offences Act, No. 3 of 2006.** The particulars were that on the 3rd day of July 2016 at Bandari Village, Mwamba sub-location, Lugari sub-county, within Kakamega County, the aforesaid accused persons alternately, intentionally and unlawfully caused their penises to penetrate the vagina of N.W, a child aged 16 years. In the alternative, they were charged with committing an indecent act with a child contrary to **Section 11 (1) of the Sexual Offences Act.** The particulars were that on the same date and place, the said accused persons indecently and unlawfully touched the vagina of **N.W**, a child aged 16 years with their penises. 8. In **Count VI,** the 1st (the 1st Appellant), 7th (the 2nd Appellant), and 8th (the 3rd Appellant) accused persons were charged with the offence of **gang defilement** contrary to **Section 10 of the Sexual Offences Act.** The particulars were that on the 3rd day of July 2016 at Bandari village, Mwamba sub-location, Lugari sub-county, Kakamega County, the aforementioned accused persons alternately, intentionally and unlawfully caused their penises to penetrate the vagina of S.N.O, a child aged 16 years. 9. In the alternative, they were charged with the offence of committing an indecent act with a child contrary **Section 11(1) of the Sexual Offences Act.** The particulars were that on the same date and place, the aforesaid accused persons alternately, intentionally and indecently touched the vagina of **S.N.O,** a child aged 16 years with their penises. 10. The Appellant pleaded not guilty to the charges and a trial was conducted in which the prosecution called a total of 14 witnesses as follows: 11. **PW1,** a Librarian working at Turbo Girls High School was the complainant with regard to the first count. Her evidence was that on the night of 3rd July 2016 at 8.30pm, she was in her house with her girls and children when they were attacked by robbers. She was in the house with her son and daughter while the girls were in the kitchen washing dishes. While in the house, a man entered through the door and told her that he had come to collect money from her. The man was then followed by two other men. 12. The lights had not been put off. The first man had a blue overall and a cap. The overall looked like the kind that are normally worn by Mechanics. The second man had a black trouser and a big sweater while the third man had a black trouser and a brown jacket. The men then got hold of her son. PW2 was then brought into the house and tied with a yellow manila rope. Barrack and PW2 were tied up after being ordered to lie down. Thereafter, they asked PW2 to lead them to her bedroom and she duly complied. One of the assailants went with PW2 to the bedroom leaving her with the other two men. 13. One of the men asked her for money but she told her she did not have any money on her. They then took her phone which was Huawei 4360 by make. She was then taken to her bedroom where she was asked to show them where the safe was. In the bedroom, they found the man who had earlier on left with Nancy (PW2). He is the one who had a brown Jacket. The men ransacked the bedroom and one of them who said that he knew her husband was a Police officer demanded that she shows them where her husband's gun had been hidden. She explained to them that her husband was not a police officer but worked with the Forest Department. Later, the men switched off the lights but left the security lights outside. The men had torches which they flashed around the room. She heard a commotion as they moved up and down and after some time, everything went quiet. 14. She moved out of the room and went to look for her girls. She found them in different rooms. They explained to her that they were defiled by their assailants. She then went to her neighbors' homes and after waking them up, she narrated to them the ordeal they had gone through. She also called her husband, sister and brother in law. Her sister and brother in law came in their car in which they ferried the defiled girls to hospital. They later went to Turbo Police Station where they reported the incident. They discovered that the robbers had stolen a number of household goods. They stole five mobile phones, two Television sets, one laptop, one 13 kgs Gas cylinder, one DVD Player, three sets of curtains, two suit cases, three sports shoes and two pairs of safari-boots, seven geese, one Turkey, eight chickens, one black Jacket and a set of six glasses. 15. The value of the stolen items was approximated at between Kshs.250,000/= and Kshs.300,000/= Later, she was called by the police and informed of the recovery of some of her said stolen items. She went to the police station where she was able to identify one sports shoes, one set of curtains, beige in color, a set of 6 glasses and one suit case. Subsequently, she was called again by the police and informed that some suspects had been arrested. She was required to go identify them. She went to Lumakanda Police Station where an identification parade was conducted. She was able to identify the 2nd accused person on that day. She identified him by his physical appearance. He was also brought to her homestead after his arrest. She was not sure if he was among those who robbed them on the material day. 16. A few days later, she was called by the police again and informed that more suspects had been arrested. She proceeded to the police station where upon an identification parade being conducted, she was able to identify the 1st accused person herein. She identified him from his physical appearance. He is the one who had an overall and a cap on the material night (positive). He is also the one who entered her sitting room first. Days later, they were called again for another identification parade where she managed to identify the 7th accused. 17. The Police went to his house where they recovered one L.G DVD. He was among the three people she saw in her house on the material night. He had a long trouser and a sweater. The lights were on. Finally, they were called again to Turbo Police station where another identification was conducted. In that parade, she was able to identify the 8th accused. He is the one who had a brown Jacket and a black trouser on the material night. She saw and marked her assailants' faces and physical appearances. She took the girls who were defiled by the robbers to hospital where they were duly treated. She positively identified the recovered items. 18. **PW2** was the complainant with regard to the sixth count. At the time she was giving her evidence she was a Form four student at St. Cecelia Girls, Mautuma. PW1 was her Aunt. On 3rd July 2016 at around 9.00pm she was in kitchen when robbers struck. A man who was armed with a panga entered the kitchen and ordered her and PW3 to sit down and keep quiet or else he would cut them into pieces. The lights were on. The man was wearing a black sweater which had a drawing of a cat's head. He was followed by two other men. One was tall and was armed with a rungu. Two of the men then proceeded to the sitting room where PW1 was. They ordered PW1, Barrack and N.W to sit down. She heard the assailants ask PW1 for money before they asked N.W to take them where PW1 used to keep her money. They went with her to PW1's bedroom. They looked for money but they did not find any. 19. They then took her, N.W and S.K to Barrack's room where they tied them up with a cable. The man who was armed with a panga then asked them if they knew where PW1's money was kept but she told him she did not know. The two had a conversation. They then asked N.W to take them to the Shamba boy's house which was separate from the main house. Shortly thereafter, they came back with the said Shamba boy. The Shamba boy was taken to the visitor's room. Two of the robbers later came to where they were and assured them that if they co-operate, they would not hit them. After some time, they separated them. She was then taken by one of the men to the Shamba Boys room where she was told that if she made noise she would be cut into pieces. 20. Her assailant then ordered her to lie on the bed and remove her clothes. She tried to argue with him to no avail. She decided to co-operate for fear of being harmed. He tied both her hands against the bed and defiled her. Feeling pain, she pleaded with the man to stop and that is when he untied her and took her back to the main house. He took her back to Barrack's room and ordered her to lie beside N.W. He left them in the room and after a few minutes, he came back and took her back to the Shamba boy's room where he defiled her for the second time. When he was done, he took her back to the main house and after a short while a second robber came for her and took her to the sitting room. He tried to defile her in the sitting room but she resisted. He then took her to the shamba boy's house/room where he succeeded in committing the act. He returned her to the Barrack's bedroom and left her there with N.W. Later, the third robber entered the room and defiled N.W in her presence. Once he was done, he left. 21. After a short while, they brought S.K into the same room. They then went to PW1's room where they ransacked the same. She heard them converse as they carried the items they had stolen. At around 4.00am, PW1 came for them in Barrack's room and took them to her bedroom. After they narrated to her what they had gone through, they were taken to Turbo Hospital and later to Lumakanda Sub-County Hospital where they were treated. They reported the matter at Lumakanda Police Station where she recorded her statement. On 8th July 2016 as she was going to the market to buy charcoal, she saw a man who was looking at her suspiciously. He kept looking at her and looking away. She then stopped some three men and told them that the said man was among those who robbed them on the material night. She ran home and informed PW1 and her husband. 22. They decided to follow the suspicious man. At around 7.00pm, the man was brought to their home and when he saw him, she felt that he looked like one of the people who robbed them. The following day she was taken to the police station and upon being interviewed, she said that she did not know the man. On 20th July 2016 she went to Lumakanda Police station where she was able to identify the 1st accused at an identification parade. She saw the men who defiled her. The 7th accused was the first one to defile her. The 1st accused is the one who took her to the sitting room and tried to defile her before he later on succeeded in committing the act. The 7th accused is the one who followed N.W into the kitchen while armed with a panga. She saw and identified the 1st , 2nd , and 8th accused persons. She was firm that she saw and identified 1st , 7th and 8th accused persons on the material night. 23. **PW3's** evidence was that on 3rd July 2016 at between 8.00pm to 9.00pm she was with PW2 in the kitchen. She then went out to look for a rag and while outside, she saw three men. She rushed back into the house but one of the intruders caught up with her and entered with her into the kitchen. He then ordered her and PW2 to lie down and keep quiet which they did. The lights were on. The man was wearing a black sweater and had a panga in his hands. He tied up their hands and asked them where PW1 and her husband were. They told them that PW1 was in the sitting room watching Television. 24. Two of the men proceeded to the sitting room where they found PW1 giving medicine to her baby. The man who remained with them in the kitchen took them to one Barrack's room. The man was short and had gumboots. He was wearing a black sweater. He then took them to Barrack's room where he tied them with a DVD Cable and left them there. He went for N.W who was in the sitting room and brought her to the same room. All the three men came with N.W to the room and started asking them questions. The lights were on and she could therefore see the men clearly. They subsequently separated them and took each one of them to different rooms. 25. There were three robbers in Barrack's room. One of the robbers had a black sweater, the second robber had an overall and the third one had a brown Jacket. One of the robbers took her to their room where he asked her to remove her clothes but she resisted. Their room was near the visitor's room. He forced her to remove her clothes and threatened to strangle her if she did not co-operate. She had to co-operate in order to save her life. After she removed her clothes, he defiled her and when he was done, he left the room. The second robber then walked in and defiled her too. The third robber also walked in and did the same. They had switched off the lights but they had torches and she could therefore see their faces as they defiled her. 26. One of the robbers defiled her twice. She chatted with one of the robbers in Bukusu language. The man who was chatting him up later went to the sitting room where they were packing the items that they had stolen. One of the robbers who looked like he was the ring leader was being referred to as 'ISO'. The robbers kept coming in and out of their room to find out if she was still there. They ordered her to lie still on her bed which she did until 4.00am when PW1 came for her and took her to the sitting room where she found PW2 and the other girls. They then called Barrack's uncle who came and saw what had happened. They proceeded to Barrack's grandmother's place where they stayed until morning. PW1 then called her friend who took them to Turbo Sub-County hospital. 27. After treatment, they reported the matter to the police. She was treated at Turbo hospital and later at Lumakanda Hospital. She was duly issued with a P3 Form which was filled by a doctor. On 13th July 2016, she went to the Police Station where identification parades were conducted with regard to some suspects. She was able to identify the 7th accused. On 20th July 2017 another identification parade was conducted and she was able to identify the 8th accused person. On 25th September 2016 she also identified the 1st accused at an identification parade. She saw all the three accused persons who she identified during the robbery incident. The 1st accused was armed with a rungu, the 7th accused was armed with a panga and the 8th accused was armed with a metal bar. She saw them clearly during the robbery incident. The 7th accused had a black sweater and gumboots. He is the one she was chatting with in Bukusu language. She saw the 2nd accused when he was brought to their homestead after PW2 saw him and raised alarm. 28. **PW4,** the husband to PW1, told the court that on the 3rd day of July 2016 at around 5.00am he was at his place of work when his wife called and informed him that they had been robbed the previous night. The robbers defiled their girls during the incident. He sought permission and travelled home. He arrived at around 11.00am and proceeded to Turbo Sub-County Hospital where the girls had been taken for treatment. PW1 joined him there and at around 1.00pm, they all went back home. He confirmed that his house had indeed been ransacked. 29. Things had been strewn all over and the house was in a mess. Several items had been stolen. He checked around and confirmed that two Television sets, D.V.D, Home Theatre, Laptop, Gas cylinder, assorted clothes, shoes, geese, one Turkey, 8 Chickens and one Play theatre had been stolen. The matter had already been reported at Turbo Police Station. On 8th July 2016 at around 6.00pm, he sent PW2 to the shop and after 20 minutes, she came back while crying. She then told them that she had seen someone who looked like one of the men who robbed and defiled them on the night of 3rd July 2016. He then rushed to the road where they found some men who PW2 had requested to arrest the man she had seen. The men showed him the man PW2 had asked them to arrest. He had a black top. He went after the man and arrested him. He then took him to his compound and when the girls saw him, they said he looked like one of the robbers. He called Administration Police Officers from Lumakanda who came to the scene and arrested him. 30. They escorted him to Turbo Police Station. The following day he was informed that some items had been recovered. He went to Turbo Police Station where he was shown the said items. He was able to identify a suit case, glasses, curtains and shoes as some of the items which were stolen from his house on the material night. He was told that the items were recovered from the 1st accused herein. On 5th August 2016, after carrying out his own investigation, he arrested the 7th accused at a hotel in Turbo. 31. He took him to Turbo AP lines and thereafter he was escorted to Turbo Police station. Later, they identified where he lived and proceeded there with corporal Owuor. They recovered his DVD machine which was one of the items which were stolen from his house on the material night. He was told by Corporal Owuor that the other items were recovered from the 1st accused. 32. **PW5's** evidence was that on 3rd July 2016 at around 8.30 pm he was in the house sleeping when he was woken up by PW2. He opened the door and immediately thereafter he was held by the thugs who had sent PW2 to wake him up. He was ordered to sit down and he duly complied. They then took him to the main house where he was hit on the head. He was taken to the sitting room where he was made to sit down. He was led into the visitor's room where one of the assailants slapped him with a panga on the head. Two of the robbers were with him in the visitor's room. One of them hit him on the leg with a rungu. He tied him up with a Manila rope against the bed and left him there as they went to pick items in the other room. They then collected Samsung Television sets, DVD machines, chickens, geese, brief case, clothes and his boss's shoes. At around 5.00am, PW2 came to the visitor's room and untied him since the robbers had left. 33. They then proceeded to the neighbor's place and later went to Turbo Police Station where they recorded their statement. His mobile phone and National Identity card were stolen. On 17th July 2016, one of the robbers was arrested. His phone was recovered from him. He positively identified the phone which was also produced in evidence before this court. He was told that the phone was recovered from a robber named Isaac. He saw and identified the 1st accused. In the visitor's room he was with the 1st and 2nd accused. 34. **PW6,** a clinical officer from Turbo Sub-County Hospital examined PW2, PW3 and PW8 and found that they were indeed defiled. He filled their Post Rape Care Forms which were duly produced in evidence before this court. 35. **PW7,** a doctor based at Lumakanda District Hospital, produced in evidence the P3 Forms in respect of PW2, PW3 and PW8. The said P3 Forms confirmed that the three girls were defiled. 36. **PW8** who at the time she was giving her testimony was a Form 2 student at Foresto S.A High School told the court that on the 3rd day of July 2016 at 9.00pm they were attacked by robbers. She was also defiled during the incident. She was able to identify his assailants since she saw them. There were lights. She was defiled in turns by the said assailants. She saw and identified the 1st , 7th and 8th accused persons. 37. **PW9**, and administration Police officer attached to Mwamba AP Post, is the one who rescued the 2nd accused after he was arrested by members of the public. This was on 9th July 2016. He rearrested him and escorted him to Lumakanda Police Station where he handed him over to the regular police. The 2nd accused is the one who implicated the 5th accused herein. 38. **PW10,** an Inspector of Police based at Lumakanda Police Station is the one who conducted identification parade in respect of the 1st accused herein who was duly identified by four identifying witnesses. He duly prepared and filled identification parade forms which he produced in evidence before this court. He carried out the exercise strictly in accordance with the law. 39. **PW11,** a police corporal attached to Turbo Police Station is the one who investigated this matter and preferred the present charges against the accused persons. His evidence was that the report regarding the present robbery with violence incident was received at the said Police Station on 4th July 2016. He visited the scene of crime. In the course of investigations, they came across information that led them to possible suspects. The 1st accused was identified as one of the suspects. 40. With two of his colleagues they, raided the 1st accused person's house at Kosgei village but they did not find him. Instead, they found the 6th accused who was said to be his wife. They searched the house and found several items which they suspected were stolen property. They took them to the police station. They also arrested the 6th accused and went with her to the police station. The recovered items were positively identified by PW1. The 6th accused was arraigned in court and on 17th July 2016 the 1st accused who had visited her at Eldoret G.K prison was arrested. They proceeded with him to his house where they conducted a further search and managed to recovered more items in respect of which he prepared an inventory which the 1st accused signed. 41. They then handed the 1st accused to the C.I.D's office. On 5th September 2016 PW4 arrested the 7th accused and brought him to the station. Through informers, they were able to trace his house and on 6th September 2016, he and PW4 proceeded to the said house and Panpaper where they found his house. They conducted a search in the presence of one Inspector Yator, P.C Ojwang and managed to recover one DVD player, one sub-hoofer player, speaker and one power inverter. He prepared an inventory of the recovered items and the same was signed by all those who were present save for the 7th accused. 42. The DVD player was later identified by PW4 as one of the items which was stolen from his hose on the material day. He even produced a receipt to that effect. He knew the 1st accused prior to this case since he once arrested and charge him in relation to the offence of breaking and stealing but he was acquitted under **Section 204 of the Criminal Procedure Code**. The 7th accused was also known to him prior to this case. He had earlier on been charged with the offence of defilement which was however withdrawn under **Section 87(a) of the Criminal Procedure Code.** The 2nd accused mentioned the 5th accused during interrogation. 43. **PW12**, an administration officer attached to Mwamba Police Station, told the court that on the 9th day of July 2016 at around 5.00pm he received a call from PW4 who informed him that the 2nd accused herein was about to be harmed by members of the public who had arrested. He then rushed to PW4's homestead where he rescued him and took him to the police station. During interrogation he mentioned the 5th accused and on the same day, he arrested him. 44. **PW13,** a government analyst, told the court that on the 10th day of August 2016, they received two high vaginal swabs which were marked as A1 and A2. The same were obtained from one Stacie. They also received two vaginal swabs marked B1 and B2 which were obtained from N and two vaginal swabs marked as C1 and C2 obtained from S.K. The further received five blood samples for the 1st accused, 2nd accused, 3rd accused, 4th accused and 5th accused and blood samples for N.W, S.K and S.N. His findings were that there was no blood detected on item A1 and A2. No semen was detected on item B1 and B2. No semen or blood stains were detected on item C1 and C2. He did a DNA analysis on the blood on item B1 and B2 and found out that the DNA profiles generated from the blood stains on item B1 and B2 matched those generated from blood sample of N.W (item D). He prepared a report which he dated 16th January 2018. 45. **PW14,** a police officer who at the time of the present incident was attached the D.C.I's office, Lugari, told the court that he was one of the officers who went to the complainant's home following the incident. This was on 4th July 2016. He said that the robbers got into the complainant's compound through the fence which was made of barbed wire. They recorded statements from witnesses and later they managed to arrest the accused persons. 46. In his sworn statement of defence, the 1st accused (1st Appellant) told the court that on 17th July 2016 at around 9.00pm he was at Mchanganyiko bar where he had a quarrel with a colleague. They had a fight and the owner of the bar called Administration Police Officers at the scene. They were both arrested and taken to Milimani Police Station where they were left. At around 11.00 pm, PW11 came and started beating him up and asking him to admit that he was ISAAC MAIYO, the person he had arrested before. He showed him his National Identity Card to convince him that he was not the person he was talking about but he did not listen to him. He later ferried him to Lumakanda Police station where he told the officers at the said station that the was the suspect with regard to an incident that happened at Mwamba. He was tortured and subsequently he was arraigned in court where he complained to the magistrate about what had happened to him. 47. The police asked that he be taken back to the police station and he was duly taken to Central Police Station. On 17th July 2017 he was brought back to court when police officers asked that he be taken back to Lumakanda Police station. On 20th July 2016, he was gotten out of the cell and taken to hospital where he found the complainants. His blood samples were taken while they were there. From there, he was taken to the C.I.D's office together with the complainants and later he was taken to Lumakanda Police Station. At around 2.00pm, he was taken outside where he found people standing in a line. He was put in the middle and shortly thereafter, some people came to identify him. They were the same people who were with him at hospital. He tried to protest to no avail. He produced his National Identity card which bore the name Isaac Osoro Mikael. 48. The 2nd accused gave unsworn statement in defence. He told the court that he was a farmer. His evidence was that on the 8th day of July 2016 he was on his way from work when he was attacked by a mob. PW4 who was part of the mob arrested him and took him to his compound where they tied him with ropes. Administration officers then came and took him to the police Station. He was asked if he knew what happened to PW4 and when he said he knew nothing about the alleged incident, they locked him up in the police cells and subsequently, he was arraigned to court. He said that at the time the offence herein is alleged to have been committed he was in his house sleeping. 49. The 3rd accused who gave sworn statement in defence told the court that he was a boda boda (motor cycle taxi) operator and that on 8th July 2016 he was at the stage when a customer came and asked him to take him to Mwamba area. He took to a den where alcoholic drinks were being sold. The man bought him some drinks and as they were partaking of the same, police officers raided the place and all those who were there were arrested. They were taken to the police station where all those who were unable to raise a bribe of Kshs.500/= were detained. He was among those who could not raise the alleged bribe. On 12th July 2016, he was arraigned in court but the charges were not read out to him. He was returned to the Police Station and on 13th July 2016 an identification parade was conducted and in that identification parade, the identifying witnesses did not identify him. On 14th July 2016 he was escorted to hospital where his blood sample was taken for purposes of a DNA test. On 15th July 2016, he was arraigned in court and charged with the present offences. He maintained that he is innocent. 50. The 4th accused also gave sworn statement in defence. His evidence was that on the 9th day of July 2016 at around 7.30pm he left his home and went to work. He was a boda boda (Motor cycle taxi) operator. On his way to Turbo, at a place called Spring buck, he was flagged down by NTSA officers who arrested him since he did not have an insurance Certificate, Helmet and Reflector Jacket. He was taken to Turbo Police station where he was put in the cells since he failed to pay Kshs.10,000/= that the police officers wanted. He was duly interrogated and even tortured by officers who wanted to extract a confession from him. They wanted him to confess that he was involved in the present robbery incident. He subsequently went through an identification parade but he was not identified and/or picked out by the identifying witness. He maintained that he is innocent. 51. The 5th accused gave sworn statement in defence. He said that he worked as a Motorcycle repairer based at Turbo. His evidence was that on the 8th day of July 2016 at around 9.00pm he was in his house with his family when he was picked by police officers who ferried him to Mlima Police station in their vehicle. He was duly interrogated and locked up in the cell and the following day, he was taken to the C.I.D office at Lumakanda. While in the vehicle on their way to the said C.I.D office, he was tortured by police officers who tried to force him to confess to an offence he had not committed. Subsequently he participated in an identification parade exercise where he was not identified by the identifying witnesses. He then arraigned in court and charged with the present offences. 52. The 6th accused who gave unsworn statement told the court that on the 2nd day of July 2016 she met the 1st accused and after becoming friends, he asked him to visit him at his home at Kasichei. She duly visited him as requested and the two slept together. The following day, they spent more time together and, in the evening, he told him he was going to work. He did not tell her what kind of work he was going to do. He came back in the morning at around 6.00am with a briefcase and other items which were inside the said brief case. He left some of the items he had come with in the house. He left the house and asked her to wait for him. On the night of 8th July 2016 as she was sleeping, police officers came to the house and arrested her. They also took the items that the 1st accused had come with. She was later arraigned in court and charged. She maintained that she was innocent. 53. The 7th accused (2nd Appellant) gave sworn statement in defence. He used to work at Sylver Hotel before his arrest. His evidence was that on 5th September 2016 he was going about his work when at around 3.00pm he was sent to a certain canteen by his boss to buy some supplies. He went to the said shop and was given what he needed. As he was going back to the hotel, he met PW2 who he knew very well because he had previously charged him with the offence of defilement. He then proceeded to the hotel and when he got there, AP officers came and picked him. They took him to the chief's office and while there, PW11 came with a woman and three girls. The chief asked the woman if she knew him but she said she did not know him. PW11 then went out with the woman and when they came back, PW11 took him to the Police Station where he was locked up. 54. The 8th accused (3rd Appellant) gave unsworn statement in defence. His evidence was that on the 29th day of September 2016 he woke up as usual and proceeded to Mlima Police Station where he asked to be given back his money amounting to Kshs.27,000/=. He found the OCS who advised him to come back the following day. He went back to Turbo where he continued selling maize to his customers and while there, a man came on a motor bike. His name was Maina. He knew him as a police officer. He then asked him if he could help him do some work and he agreed. He sat on the motor bike and they proceeded to the AP Camp at Edmos. While there a police lorry from Turbo came and he was arrested by PW11 who he alleged had his Kshs.27,000/=. 55. He was taken to Turbo Police Station where he stayed until the day he was arraigned in court. He said that while in the police cell and before he was identified, he heard PW1 coach the complainants herein. He heard him tell them to identify him. They gave them their description. He heard him tell PW1 that he was tall and dark and that he would be wearing a one shoe. That is how they managed to pick him out from the identification parade. He claimed that he was made to wear one shoe and later he was made to wear a jacket thereby making it easier for the complainants to identify him. He remained in the cell for 7 days before he was arraigned in court **Judgment and Sentence** 1. At the conclusion of the trial, the trial Magistrate found that the prosecution had failed to prove its case against the 2nd , 3rd , 4th , 5th , and 6th Accused persons to the required standard. Consequently, the learned Magistrate acquitted them of all counts pursuant to **Section 215 of the Criminal Procedure Code (Cap 75)**. However, the court found that the prosecution had proved its case against the 1st , (1st Appellant) 7th (2nd Appellant), and 8th (3rd Appellant) Accused persons beyond a reasonable doubt across all counts. Accordingly, they were found guilty as charged and convicted under **Section 215 of the Criminal Procedure Code**." 2. In respect of the sentences meted out to each of the Appellants, the trial court imposed thirty (30) years’ imprisonment each for Counts I, II, and III, and twenty (20) years’ imprisonment each for Counts IV, V, and VI. By order of the court, the sentences in Counts I, II, and III are to run concurrently, while the sentences in Counts IV, V, and VI are to run consecutively to each other and to the first block. Consequently, the total effective sentence to be served by each Appellant is ninety (90) years’ imprisonment." **The Appeal** 1. Aggrieved by this determination, the Appellant filed the present Appeal vide Petition of Appeal raising nine (9) grounds which were later amended in his amended Grounds of Appeal where he raised seven (7) grounds as follows: - 2. **That the learned trial Magistrate erred in law by convicting and sentencing the Appellant on a defective charge sheet under Section 295 as read with section 296(2) of the Penal Code; the charge therefore was duplicitous the appellant should have been charged under Section 296(2) of the Penal Code.** 3. **That the learned trial Magistrate erred in law and fact by convicting the Appellant but failed to note that the identification parade was not free errors as per the police standing order chapter 46.** 4. **That the learned trial Magistrate erred in law and facts by failing to note that the evidence of identification by PW1, PW2, PW3 and PW4 was not free the possibilities of error.** 5. **That the learned trial Magistrate erred in law and facts in that the learned trial Magistrate introduced his own theories not supported by evidence.** 6. **That the learned trial Magistrate erred in law and facts by failing to note that the Appellant’s arrest was not connected to the offence.** 7. **That the learned trial Magistrate erred in law and facts by failing to note that the doctrine of recent possession principles were not adhered to.** 8. **That the learned trial Magistrate erred in law by convicting the Appellant by failing to note that his violation to a fair trial was not followed.** 9. In response to the Appeal, the Respondent on 16/12/2025 filed a Notice of Enhancement Under Section 364 of the Criminal Procedure Code as read with Section 295 and 296(2) of the Penal Code to have the current sentence of 90 years enhanced to death penalty. 10. The Appeal was admitted for hearing after which parties took directions to canvass it by way of written submissions. Each of the respective Appellants filed their individual submissions on 15/01/2026 while the Respondent filed on 4/02/2026. **Appellants’ Submissions** 1. The 1st Appellant submitted that the charge sheet is defective since the charges are framed in duplex form. He contended that the Identification parade was not free from errors as per the police standing orders . He faulted the trial Magistrate reasoning as not being supported by evidence. He submitted that his arrested was not connected to this offence. He also faulted the trial Magistrate for applying the doctrine of recent possession. 2. The 2nd Applicant submitted that the investigations were conducted in a shoddy and shambolic manner. He contended that the Prosecution did not prove its case beyond reasonable doubt. Regarding the sexual offence he urged that the same ought to be supported by a medical expert. He further submitted that his arrest was unfair and that his defence was disregarded. 3. On his part, the 3rd Appellant submitted that the prosecution called a total of 14 witnesses who testified and contradicted their evidence in chief. He contended that the charge sheet was defective. He also faulted the process of the identification parade. **Respondent’s Submissions** 1. On his part, Prosecution Counsel **SG Thuo** submitted that the 90 year sentence was lawful. He relied on the case of [**Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2024/34/eng%402024-07-12), where the Court observed that *court's decision in Muruatetu did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute."* 2. Counsel urged that when considering a matter for resentencing, the Court must evaluate the evidence in respect of each case and determine whether there existed aggravating factors. According to Counsel, this was a case where the aggravating factors far outweighed the mitigation the Appellants had offered. Counsel argued that the crime committed was heinous and the permissible sentence by law ought to have been the death sentence. Counsel submitted the interests of justice demand that penance be paid through a retributive sentence. 3. Counsel added that the Court in the case of *Muruatetu* did not declare the death sentence unconstitutional, just the mandatory nature of it that denies the sentencing court an opportunity to factor in any mitigating circumstances. 4. Counsel maintained that a sentence of death is thus, still a lawful sentence where there exists aggravating circumstances. He submitted that the appellants were sentenced to a jail term for 90 years each. He argued that the sentence under the law for the offence of robbery with violence is death. 5. Counsel pointed out that the Appellants were armed with dangerous weapons namely iron bars, pangas and rungus. He argued that the offences committed in circumstances that truly was heart-wrenching. He added that assailants attacked a vulnerable woman with her siblings at her own home from around 8 pm to dusk while raping her school going girls repeatedly one after the other in full view of each other. 6. To sum up, Counsel submitted that a 90 year sentence was lenient in the circumstances and that this Honorable court is clothed with the powers to enhance the same to a death sentence. **Determination** 1. I have considered the appeal and submissions by both parties. I have also read the record of the trial Court and the impugned Judgment. As a first appellate Court, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses **(See Okeno vs. Republic [1972] E.A 32)** 2. I find that the following issues arise for determination: 3. **Whether the offence of robbery with violence was proved against the Appellants to the required standard.** 4. **Whether the offence of gang rape was proved against the Appellants to the required standard.** 5. **Whether the sentences meted out by the trial court were proper and lawful.** 6. The offence of robbery with violence is anchored in Sections 295 and 296(2) of the Penal Code. **Section 295 provides:** **“Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.”** 1. **Section 296(2) 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 after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.”** 1. In **Johana Ndungu vs. Republic, Criminal Appeal No. 116 of 1995**, the Court of Appeal stated: **“In order to appreciate properly as to what acts constitute an offence under section 296(2) one must consider the subsection in conjunction with s.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 property at or immediately before 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 s.296(2)...”** 1. It is settled that the elements in Section 296(2) are disjunctive. In **Oluoch vs. Republic [1985] KLR 549**, the Court held that proof of any one of the three ingredients is sufficient to sustain a conviction. 2. In **Isaac Ng’ang’a Kahiga alias Peter Ng’ang’a Kahiga vs. Republic, Criminal Appeal No. 272 of 2005**, the Court stated: **“It is trite that before a court of law can rely on the doctrine of recent possession as a basis of conviction... the possession must be positively proved... first that the property was found with the suspect, secondly that the property is positively the property of the complainant; thirdly that the property was stolen... and lastly that the property was recently stolen...** **Whether the offence of gang defilement was proved** 1. Section 10 of the Sexual Offences Act provides: **“Any person who commits the offence of rape or defilement under this Act in association with another or others... is guilty of the offence termed gang rape and is liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life.”** 1. The same Act defines **“gang”** as: **“means two or more persons**” 1. In **Adam Daktari Konoye v Republic [2019] eKLR**it was stated that: **“In view of the above provisions of law, my understanding of the offence of gang rape is that it is committed by more than one assailant who act in association with a common intention and not all of them carry out the actual rape or defilement.”** 1. In [**Cosmas Koech v Republic**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2021/1455)**(**2021) eKLR, Gikonyo J. held that:- **“Elements of the offence of gang rape or gang defilement are in Section 10 of the**[***Sexual Offences Act***](https://new.kenyalaw.org/akn/ke/act/2006/3)**are:-** **a. Unlawful sexual act committed in association with another or others or** **b. Being in the company of another or others who commit the offence with common intention of committing the offence. Accordingly, a person may not have engaged in the sexual act of defilement but is guilty of gang rape or defilement if he was in company of another or others who commit the offence with common intention of committing the offence”.** 1. The essential elements are penetration, lack of consent, participation in association with others, and identification of the perpetrator. 2. On Whether the Sentence preferred against the accused person was manifestly excessive, harsh and severe or in the alternative as submitted by the Prosecution, the sentences meted out the Appellants upon the finding of guilt and subsequent conviction on the charge of robbery with violence contrary to **Section 296(2) of the Criminal Procedure Code** be enhanced to the mandatory penalty of death, the court notes that the applicable principles in considering sentence on appeal were restated by the Court of Appeal in [**Bernard Kimani Gacheru v Republic**](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/keca/2002/94)**[2002] eKLR,** in the following terms: - **“It is now settled law, following several authorities by this court and the high court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account the wrong material, or acted on the wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist”.** 1. In Appellant appealing against the sentences meted out on the ground that the same are manifestly excessive, harsh and severe it should be noted that **Section 296(2)** provides that an offender if convicted under this section, *shall be sentenced to death*. This provision notwithstanding the court notes that the trial court sentenced each Appellant to serve thirty (30) years imprisonment on each of Counts I, II and III on the offence of Robbery with Violence contrary to **Section 295 as read with Section 296(2) of the Penal Code** with an order that these sentences run concurrently. In this regard, it is my very well considered opinion that these sentences are therefore not manifestly excessive, harsh and severe and particularly in light of the fact that the Prosecution is seeking that the death penalty be imposed. 2. Further, the trial Court sentenced each Appellant to serve twenty (20) Years imprisonment on each of Counts IV, V and VI of **Gang Rape contrary to Section 10 of the Sexual Offences Act** with an order that these sentences run consecutively. The sentence prescribed in **Section 10** of the [**Sexual Offences Act**](https://new.kenyalaw.org/akn/ke/act/2006/3)**No. 3 of 2006** upon conviction is liable to imprisonment for a term not less than fifteen (15) years but which may be enhanced to imprisonment for life. The trial court in imposing this sentence took into consideration the circumstances under which the offences were committed as herein summarized. In this regard, I am satisfied that the trial Magistrate properly directed itself and further that the sentences imposes for the offence of gang defilement too is not severe, manifestly harsh and/or excessive. 3. The above said however, in considering the number of years that sentences imposed already amount which is a total of ninety (90) years imprisonment to each Appellant, the court now allows the ground on appeal on the sentence in the following terms; The sentence of twenty (20) imprisonment on each of Counts IV, V and VI is now hereby upheld. However, the order that these sentences run consecutively is now hereby varied and set aside and substituted with an order that the sentences on the said Counts IV, V and VI run concurrently. 4. Apart from this variation, I see no further reason to interfere with the sentences as imposed. For the avoidance of doubt, the sentences 30 years’ imprisonment imposed on each of Counts I, II and III are to run concurrently to each other, and separate and distinct from the sentences imposed in counts IV, V and VI. 5. The sentences of 20 years’ imprisonment imposed on each of Counts VI, V and VI are to run concurrently to each other, and separate and distinct from the sentences imposed in counts I, II and III 6. This then brings the aggregate on counts I, II, III, IV, V and VI down from a total 90 years’ imprisonment imposed by the Learned Trial Magistrate to a total 50 years’ imprisonment for each Appellant and it is so ordered. 7. Right of Appeal 14 days **Read dated and Signed Virtually at BUNGOMA on 30th July 2026** **E. OMINDE JUDGE**