Kosgei alias Weldon & another v Republic (Criminal Appeal E016 & E022 of 2021 (Consolidated)) [2026] KEHC 4800 (KLR) (13 April 2026) (Judgment)

Kosgei alias Weldon & another v Republic (Criminal Appeal E016 & E022 of 2021 (Consolidated)) [2026] KEHC 4800 (KLR) (13 April 2026) (Judgment) Neutral citation: [2026] KEHC 4800 (KLR) Republic of Kenya In the High Court at Nakuru Criminal Appeal E016 & E022 of 2021 (Consolidated) PN Gichohi, J April 13, 2026 Between Justine Kiprono kosgei alias Weldon 1st Appellant Allan Kipkurui Kosgei Alias Vincent 2nd Appellant and Republic Respondent (Being an Appeal from the Conviction and Sentence by Hon. A Mukenga(SRM) in the Magistrate’s Court at Molo in Sexual Offences Case Number 2739 of 2025) Judgment 1.In the amended charge, the Appellants were charged with the offence of gang rape contrary to section 10 of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 20th day of January, 2015, at xxxx village in xxxxx District within Nakuru County, jointly with another person before the Court, caused their penis to penetrate the Vagina of the said M.C(minor), without her consent. 2.They also faced an alternative charge of committing an indecent act with a child contrary to section 11(a) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on 20th day of January, 2015, at xxxxx village in xxxxx District within Nakuru County, intentionally touched the buttocks/breast/Anus/ vagina of M.C, a child aged 16 years, without her consent. Prosecution case before the Trial Court. 3.The evidence advanced by the six (6) Prosecution witnesses was that on 20th January, 2015, while returning from harvesting potatoes in the xxxxx forest, the complainant MC (PW1) aged 16 years at the time, was accosted by the two men Weldon and Vincent (1st and 2nd Appellants respectively). Weldon held her at knifepoint and threatened to kill her if she screamed, while his brother Vincent raped her. Following the ordeal, they threatened to kill her if she told anyone. This led her to keep the incident secret from her strict parents. 4.She eventually discovered she was pregnant. In July 2015, she was allegedly assaulted by Vincent and an employee named Gilbert for refusing to marry Vincent. Shortly after, she went into labour and delivered a baby at home while her parents were away. The baby died on 30th July, 2015, after they were referred to Kericho Hospital. Vincent’s family paid the hospital bill and took the baby’s body in a carton, later burying it at midnight at Vincent's home without informing her parents. 5.Her mother, HK (PW3), was away looking for land when the complainant delivered a baby. Upon her return, she found that the family of the Appellants had taken the complainant to the hospital and they had buried the dead child at their home without her consent. 6.On 29th July, 2015, EC (PW5), who was a neighbour and Nyumba Kumi Member, received information that PW1 had delivered a baby while alone. She went to the scene and found the infant lying on the ground. Since the complainant’s parents were not at home, PW5 called other female neighbours to assist in cutting the umbilical cord and alerted the police. 7.Under police instruction, the mother and baby were taken to Murinduko Hospital, but due to the infant being premature, they were referred to Kericho District Hospital. She noted that Vincent (2nd Appellant) and a woman named Mercy are the ones who took the complainant and the baby to Kericho District Hospital. 8.On the same day (29th July, 2015), APC Michael Onyango (PW4) received a call from a PW5 reporting that the complainant had delivered a baby alone at home and there were fears she might harm the infant. Upon arrival at the scene in Bonde village, he found several women in the compound, while the complainant was inside the house. The infant was in the kitchen and wrapped in a blanket. He instructed the women present to clean the baby and cut the umbilical cord before transporting both mother and child to Murinduko Dispensary. 9.Due to the baby being premature, they were referred to Kericho District Hospital. While at the hospital, Vincent (2nd Appellant) and his sister-in-law arrived. He claimed that the child was his and therefore requested that the mother and child be handed over to him, which the officer (PW4) allowed. 10.On behalf of Dr. Biket, with whom he worked and was familiar with his handwriting, Dr. Ngarama (PW2), a Medical Officer, produced the P3 form in regard to the complaint herein. The report was that the complainant had allegedly been defiled in January 2015, which led to a pregnancy that she lost at six months in July 2015. The medical examination revealed that her hymen was broken, which was evidence that the complainant had been defiled. 11.Inspector Daniel Ooko (PW6), who was the Deputy OCS at Keringet Police Station, investigated this case. He noted that the initial report was made approximately eight months after the alleged incident. He stated that extensive efforts were made to apprehend the Appellants herein. The searches were in Narok, Londiani, Marigat, and Chepsion. He visited the home of the Appellants on 2/ 9/2016 and arrested the 1st appellant (Weldon). It took nearly a year of monitoring to eventually arrest the second Appellant (Vincent). 12.While in the company of PC Irungu, PW6 visited the Appellants’ home on 3/6/2016 to be shown the child's grave but the family refused to show them where the grave was. He obtained the complainant’s Birth Certificate (PEXH. 3) showing that she was born on 22/4/1999. 13.He established that the complainant had dropped out of Royal Primary School after this incident. He obtained a letter (PEXH. 4) from the teacher showing that the complainant was a pupil in that school. The Defence case 14.Both Appellants gave sworn testimonies. The 1st Appellant closed his case without calling witnesses, while the 2nd Appellant called one witness in support of his case. 15.DW1 Allan Kosgei (2nd Appellant - Vincent), testified that the complainant (Mercy) was actually his wife and they had been living together since late 2014. He denied the offence, asserting that the case was a retaliatory move by Mercy’s family because her father was arrested for burning down his house. He alleged that Mercy aborted the child in collusion with her mother and that he only took her to the hospital to try to save the baby. 16.DW2, Samuel Rono, a neighbour from xxxxx village, told the court that the complainant, Mercy, was the wife of the 2nd Appellant, Allan. He stated that she had previously been married to another person in 2013 before getting married to Allan in 2014. He denied that Allan had defiled her and noted that there was a history of conflict involving a family house that was burnt down. He explained that he was among the four people arrested in connection with that arson attack, which also included Mercy’s father. He explained that while he had been acquitted, the case against Mercy's father was still pending at the time. 17.DW3 Justine Kiprono Kosgei (1st Appellant-Weldon)’s position was that the accusations against him arose from a conflict that began when the complainant's father allegedly burned down his house because he (Weldon) was suspected of stealing cows in the village. He claimed that he had initially forgiven the family and even paid them Ksh 9,500/-, but surprisingly, the complainant’s father declined to take the money and instead filed a case against the 1st Appellant, who was subsequently charged in this case. He categorically denied ever threatening the complainant with a knife or forcing her to have sex with his brother. 18.In its judgement delivered on 8/7/2021, the trial court found each of the two appellants guilty of the main charge and sentenced each of them to serve 15 years imprisonment. The Appeal 19.Being dissatisfied with the conviction and sentence, the 1st Appellant, Justine Kiprono Kosgei Alias Weldon, appealed to this court on 22nd July, 2021, and relied on the following grounds:- 1.That the learned trial Magistrate erred in law and in fact by failing to appreciate that the Appellant’s right to a fair trial was grossly violated, thus rendering a prejudice. 2.That the learned trial Magistrate erred in law and in fact by failing to appreciate that crucial witnesses were not called upon to testify. 3.That the learned trial Magistrate erred in law and in fact by failing to appreciate that the medical evidence produced in Court did not create a nexus between him and the alleged offense. 4.That the learned trial Magistrate erred in law and in fact by failing to appreciate the Appellant's sworn defence yet the same was plausible enough and cast considerable doubt on the prosecution's case. 5.That the learned trial Magistrate erred in law and in fact by failing to appreciate that, in totality, the prosecution's case was not proved beyond a reasonable doubt. 20.He therefore urged the Court to quash the conviction, set aside the sentence and set him at liberty. 21.The 2nd Appellant, Allan Kipkurui Kosgei Alias Vincent, filed his Appeal on 4th August, 2021 and relied on similar grounds as raised by the 1st Appellant above. 22.During the hearing on 8th July, 2025, the Appellants informed the Court that they had filed written submissions dated 6th July, 2025. However, a search of the record reveals that these submissions are notably absent from both the physical court file and the Court Tracking System (CTS). Consequently, only the Respondent’s submissions are currently on record and are in regard to the 1st Appellant (Weldon). Respondent’s Submissions 23.The submissions were filed on 23/12/2025 by James Kihara, Prosecution Counsel in the Office of the Director of Public Prosecutions for the Respondent and opposed the appeal herein in its totality. 24.Regarding the alleged violation of fair trial rights, the Respondent argued that the trial court upheld Article 50 of the Constitution by ensuring proper notification and the opportunity to cross-examine witnesses. In support of his argument, he cited the case of Sahali Omar v Republic [2017] eKLR to establish that a court may rely on a child victim’s testimony if satisfied it is truthful, noting that in this specific case, the victim's account was corroborated by P3 and PRC medical reports. 25.Further reliance was placed in the case of David Omuse Orocho v Republic [2017] eKLR to affirm that procedural requirements are satisfied when an appellant is given an adequate opportunity to challenge the complainant's testimony. 26.The Respondent emphasised that while the 1st Appellant, Justine Kiprono Kosgei (alias Weldon), only held a knife while Allan Kosgei (alias Vincent) performed the penetration, both are equally liable under Section 10 of the Sexual Offences Act. This liability is further supported by the principles of common intention and aiding and abetting as defined in Sections 20 and 21 of the Penal Code. 27.It was argued that the victim, PW1, provided a consistent account of being pulled into a forest and threatened with a knife by the appellant before being defiled by the second Appellant, an ordeal that eventually led to a pregnancy and the birth of a child who died and was buried on the accomplice's land. 28.In response to the appellant’s defence, which claimed the charges were a result of bad blood following a 2013 house-burning incident involving the victim's father, the Respondent submitted that the Appellant admitted to knowing about the child’s birth and burial. The Respondent argued these undisputed facts confirm the victim’s truthfulness. 29.To prove penetration, the Respondent relied on the testimony of PW1 and the medical reports by George Biketi, supported by Dr. Ngarama by PW2. 30.Addressing the failure to call witnesses, the Respondent detailed the testimonies of five witnesses PW1 (the victim), PW2 (the doctor), PW3 (the victim's mother who confirmed her age), PW4 (an APC Officer who assisted after the birth), PW5 (a neighbour who assisted with the umbilical cord cutting), and PW6 (the investigating officer). The Respondent argued that these testimonies established a congruent chronological order of events. 31.The Respondent cited Section 143 of the Evidence Act to show that no specific number of witnesses is required to prove a fact. Further reference was made to the case of Keter v Republic and John Mutua Munyoki v Republic to support convictions based on credible victim testimony and the principles of aiding and common intention. Further still, reference was made to Section 124 of the Evidence Act that a conviction can be sustained based on the sole evidence of a Victim in such cases. 32.On the ground of lacking a medical nexus, the Respondent cites John Otieno v Republic to argue that issues with P3 forms, such as delays, do not invalidate a conviction if the victim’s testimony is credible. The Respondent maintained that the 1st Appellant's role in holding a knife is sufficient to establish liability regardless of personal penetration. 33.Regarding the disregard of the 1st Appellant’s evidence, the Respondent submitted that his testimony actually confirms the material facts of the case while intentionally omitting his whereabouts on the day of the offence. 34.Lastly, the Respondent asserted that it proved the case beyond reasonable doubt, citing Dominic Ochieng Odoyo & Another vs Republic (2015) eKLR regarding the ingredients of gang rape: proof of defilement and proof of association with common intent. The state concluded that the claim of a ‘marriage’ between the victim and the accomplice was a sham and that the appellant’s lack of remorse further justifies upholding the conviction and sentence. Analysis and Determination 35.As a first appellate court, this Court’s duty is to re-evaluate the evidence given at the trial court. This duty was succinctly stated by the Court of Appeal for Eastern Africa in Pandya Vs. Republic (1957) EA 336 thus;-“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.” 36.From the record, the grounds of Appeal and the Submissions herein, it is clear that the issues for determination are ;i.Whether the Prosecution proved its case to the required standard.ii.Whether the Appellants’ Defences place doubt on the prosecution's case.iii.Whether the sentences were harsh and excessive. 37.The law on Gang Rape is provided for under section 10 of the Sexual Offences Act and states that;-“Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less fifteen years but which may be enhanced to imprisonment for life.” 38.Section 2 of the Sexual offences defines the term gang as “ two or more persons.” Further, Section 3 (1) of the Sexual Offences Act provides that:- (1)A person commits the offence termed rape if-(a)he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;(b)the other person does not consent to the penetration; or(c)the consent is obtained by force or by means of threats or intimidation of any kind. 39.In the instant case, and to prove its case, the Respondent had to prove the following elements:- 1.The victim (PW1) was penetrated without her consent. 2.The offence involved more than one perpetrator acting together, or in concert or with common intention. 3.Positive identification of the perpetrator (s). 39.This being a sexual offence, the case can be proved on the victim’s sole testimony under Section 124 of the Evidence Act. Indeed, the Court of Appeal in Kassim Ali vs Republic Criminal Appeal No. 84 of 2005 (Mombasa) held:-“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence.” 40.As regards penetration, section 2 of the Sexual Offences Act defines penetration as:- “ The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 41.The Complainant (PW1) testified that the 2nd Appellant, Vincent, removed her clothes and inserted his penis into her vagina. She stated that the first accused, Weldon, held her to the ground while Vincent committed the act, which lasted for approximately 30 minutes. She noted that no protection was used. 42.The medical report done by Dr. Biketi, who examined the victim, was produced by his colleague by (PW2) Dr. Ngarama. It revealed that the hymen was broken, concluding that there was penetration, which subsequently led to pregnancy. To corroborate the issue of penetration, (DW1) Allan Kosgei, while denying the allegation, claimed that the victim was his wife and they had been living together since 2014. This Court is therefore satisfied that there was penetration. It thus goes without saying that the issue of penetration was established. 43.Having established that penetration occurred, the Court has to determine whether both Appellants participated in the act or whether they acted with a common intention to commit the offence. 44.The Complainant (PW1) provided clear and cogent evidence identifying the perpetrators as two brothers who were her neighbours. She specifically detailed their respective roles, that: Weldon (1st Appellant) restrained her and threatened her with a knife, while Vincent, alias Allan (2nd Appellant), committed the physical act of penetration. 45.In his defence, Allan Kosgei (DW1) admitted to knowing the Complainant and confirmed his familial relationship with the 1st Appellant, though he claimed that the Complainant was his wife. This identification was bolstered by the testimony of Police Inspector Daniel Ooko (PW6), who verified their relationship and detailed the investigative efforts made to apprehend the Appellants, noting that while Weldon was caught early, Vincent Allan was apprehended after several months of pursuit across different regions. 46.On the doctrine of common intention, section 21 of the Penal Code provides that:-“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.” 47.Regarding the above provision, Nyakundi J. stated thus in Adam Daktari Konoye v Republic [2019] KEHC 1858 (KLR):- “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.” 48.The evidence on record established that the 1st Appellant held the Complainant’s hands while the 2nd Appellant penetrated the complainant. While the 1st Appellant did not personally perform the act of penetration, his actions in restraining the victim directly facilitated the commission of the crime. He physically overpowered the complainant to enable the 2nd Appellant’s actions, thus demonstrating a clear common intention to commit the offence. 49.This Court is therefore satisfied that the trial court properly rejected the Appellants’ defence. The Respondent’s evidence proved beyond a reasonable doubt that the Appellants acted in concert to rape the complainant. In the circumstances, the conviction of both Appellants was sound and therefore upheld. 50.Regarding the sentence, Section 10 of the Sexual Offences Act (No. 3 of 2006) stipulates that upon conviction for gang rape, an accused is liable to a mandatory minimum of fifteen (15) years imprisonment, which may be enhanced to life imprisonment. 51.While sentencing the Appellants, the trial court exercised its discretion by sentencing each Appellant to fifteen (15) years imprisonment, which is the statutory minimum prescribed by law. This Court finds no reason to interfere with that discretion. The sentence is both lawful and appropriate. It is hereby affirmed. 52.This being a determinate sentence, the trial court ought to have complied with the mandatory provision of Section 333 (2) of the Criminal Procedure Code as emphasised by the Court of Appeal in Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR, thus: -“The appellants have been in custody from the date of their arrest on 19th June 2012. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(s) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.” 53.In the present case, the court record shows that the 1st Appellant was arrested on 2/9/2015 and arraigned in court on 3/9/2015. He was released on surety bond on 10/9/2015, while the 2nd Appellant was arrested on 18 /9/2016 and released on surety bond on 27/9/2016. Consequently, the period each spent in custody from their respective date of arrest until release on bond should be taken into account while computing the 15 years imprisonment. 54.Otherwise, the Appeal against both conviction and sentence is hereby dismissed in its entirety. 55.Right of Appeal to the Court of Appeal within 14 days. DATED, SIGNED AND DELIVERED AT NAKURU THIS 13TH DAY OF APRIL , 2026.PATRICIA GICHOHIJUDGEIn the presence ofJustine Kiprono Kosgei Alias Weldon- 1st AppellantAllan Kiprotich Alias Vincent –2nd AppellantMs Bosire for RespondentErickson, Court Assistant