https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8529

Ajunga v Republic (Criminal Appeal E003 of 2026) [2026] KEHC 8529 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8529 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E003 of 2026 DR Kavedza, J June 18, 2026 Between Dennis Ajunga Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered by Hon. A. Ogonda (P.M) on 14TH January 2026 at Kibera Chief Magistrate’s Court Criminal Case No. E.202 of 2024 Republic vs Dennis Ajunga) Judgment 1.The Appellant was arraigned before the trial court and, after a full hearing, convicted on two counts: robbery with violence contrary to Section 296(2) of the Penal Code and rape contrary to Section 3(1) of the Sexual Offences Act. He was sentenced to life imprisonment on Count I and thirty (30) years imprisonment on Count II. 2.Being dissatisfied with both conviction and sentence, the Appellant lodged the present appeal challenging the totality of the prosecution case and contending that the sentence imposed was unlawful. He prays that the conviction be quashed and the sentence set aside. 3.This being a first appeal, this Court is under a duty to reconsider, re-evaluate and re-analyse the evidence afresh and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify: Okeno v Republic [1972] EA 32. 4.The prosecution case was principally built on the testimony of PW1, the complainant. She testified that on the material morning at about 5.30 a.m., while proceeding to work, she encountered the Appellant armed with a machete. He allegedly cut her bag straps, forcibly took her mobile phone, and thereafter dragged her to a plantation. She stated that he assaulted her on the rib area with a machete, causing her to fall, and proceeded to demand her phone password and M-Pesa PIN. She further testified that she was subsequently raped after being ordered to undress, while another man kept watch. 5.PW1 further stated that after the incident, she was released, found assistance from a boda boda rider, and was taken to her workplace where she contacted her father. She was later taken to hospital and thereafter to Kabete Police Station. She identified the Appellant at an identification parade and stated she recognised him by his facial features, including his beard and mouth, and that there was sufficient light during the incident which lasted approximately thirty minutes. 6.PW2, the complainant’s father, corroborated PW1’s account of events after the incident. He received a distress call, found her distressed and injured, and escorted her to hospital and thereafter to the police station. He confirmed that PW1 narrated the incident to him and described the assailant. 7.Medical evidence was tendered by PW3, Dr Kamau Mariga, who produced the medical report. He confirmed that PW1 had tenderness on the right flank consistent with blunt force trauma, classified as harm. He further found clinical signs consistent with sexual assault, including vaginal discharge and findings consistent with penetration. He concluded that the injuries were consistent with the history given. 8.PW4, an Inspector of Police, testified that she conducted an identification parade at Kabete Police Station. PW1 positively identified the Appellant by touching him on the shoulder. The Appellant raised no objection to the conduct of the parade, stating he was satisfied with the process. 9.PW5, the investigating officer, testified that investigations linked the Appellant to the offence through M-Pesa records showing a transfer of Kshs 470 from the complainant’s phone to a number associated with the Appellant. She further confirmed recovery of a panga and stated that the Appellant had earlier been mentioned in related police entries. An identification parade was subsequently conducted. 10.In his defence, the Appellant denied the charges. He contended that he was arrested while coming from work, that he had no involvement in the alleged offences, and that the money received via M-Pesa was sent in error by a female acquaintance. He challenged the timing of the transactions and maintained that the allegations arose solely from the fact that his number appeared in the M-Pesa records. 11.During cross-examination, the Appellant maintained his denial and suggested inconsistencies in the prosecution case, particularly regarding timing and attribution of the M-Pesa transaction. 12.The issues for determination on this appeal are whether the prosecution proved its case beyond reasonable doubt and whether the conviction was safe in light of the evidence on record. 13.The appeal was canvassed by way of written submissions by the parties, which have been duly considered. The key ingredients for a robbery with violence charge are found in section 296(2) of the Penal Code. It provides as follows-“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”. 14.The first element of robbery with violence is theft. PW1 testified that the Appellant took her Samsung A24 phone and compelled her to disclose her M-Pesa password, after which he transferred Kshs 470 to his mobile phone. 15.The second element is the use or threat of violence at or immediately before or after the theft. PW1 stated that the Appellant was armed with a machete and struck her on the right rib area during the robbery. This was corroborated by medical evidence in the P3 form produced by PW3, which recorded right flank tenderness consistent with blunt force trauma, thereby confirming the use of actual violence. 16.The third element is that the offence was committed by more than one person. PW1’s evidence that the Appellant acted in the company of another person who kept watch was not challenged in cross-examination and remains uncontroverted. 17.The final element is identification of the offender. PW1 gave a clear and consistent account of identification, stating she recognised the Appellant during the incident and subsequently positively identified him at an identification parade conducted by PW4. This evidence was not discredited and was properly tested. 18.All the ingredients of the offence of robbery with violence were therefore proved beyond reasonable doubt. 19.The appellant was also charged with the offence of rape contrary to section 3 (1) (a) (b) as read with Section 3 (3) of the Sexual Offences Act No.3 of 2006. 20.The elements for rape are well settled in Simon Kimiti v Republic [2017] eKLR where it was stated thus;“Without corroboration the essential elements of rape consist of the following:(1)The act of intentional and unlawful penetration.(2)The act of sexual intercourse was done and against the complainant’s will.(3)The consent is obtained by force or by means of threats or intimidation.” 21.Section 2(1) of the Sexual Offences Act defines penetration as “the partial or complete insertion of the genital organ of a person into the genital organs of another person.” 22.PW1 testified that the Appellant dragged her to a plantation, threatened her with a panga, and ordered her to remove her trousers before raping her. She stated that a second man kept watch during the incident. When she resisted, the Appellant struck her on the rib with the panga. PW3 corroborated her account, confirming that the medical history and findings were consistent with penetration. 23.The Appellant challenges the medical evidence on the basis that no samples were analysed to confirm rape. However, PW3 was categorical that the clinical findings and history were consistent with penetration. 24.In any event, penetration may be established through the complainant’s evidence alone. Section 124 of the Evidence Act permits a conviction in sexual offences on the sole testimony of the victim where the court is satisfied that the evidence is credible. 25.Although this Court did not observe PW1 testify, her evidence on record is detailed, coherent and consistent, and it remained unshaken in cross-examination. 26.The Appellant’s denial was considered but does not displace the cogent and corroborated prosecution evidence linking him to the offence. 27.In sum, the prosecution proved all the ingredients of robbery with violence and rape beyond reasonable doubt. The evidence demonstrates a violent and deliberate attack on the complainant. The appeal against conviction is without merit and is accordingly dismissed on both counts. 28.The appellant was sentenced to life imprisonment on Count I and thirty-years (30) years imprisonment on Count II. The trial court considered his mitigation, and his status as a first offender. Under section 329 of the Criminal Procedure Code, the court is empowered to consider mitigation and impose a sentence proportionate to the offence, even where a specific penalty is prescribed by law. In this case, the sentence imposed was harsh and excessive and overlooked the appellant’s potential for rehabilitation. 29.Accordingly, the appeal on the sentence partially succeeds. The sentence of life imprisonment imposed in count I, is substituted with a term of thirty (30) years’ imprisonment. The sentence of thirty (30) years imprisonment imposed in Count II is maintained. The sentences shall run concurrently from the date of the appellant’s arrest pursuant to section 333(2) of the Criminal Procedure Code, Cap 75 of the Laws of Kenya.Orders accordingly. Judgement dated and delivered virtually this 18th day of June 2026..................................D. KAVEDZAJUDGE