Mutai v Republic (Criminal Appeal E051 of 2023) [2026] KEHC 8825 (KLR) (24 June 2026) (Judgment)

Mutai v Republic (Criminal Appeal E051 of 2023) [2026] KEHC 8825 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEHC 8825 (KLR) Republic of Kenya In the High Court at Bomet Criminal Appeal E051 of 2023 JK Ng'arng'ar, J June 24, 2026 Between Ezra Kipruto Mutai Appellant and Republic Respondent (From the Conviction and Sentence in Criminal Case Number E1182 of 2022 by Hon. Boke E in the Senior Principal Magistrate’s Court at Bomet) Judgment 1.The Appellant alongside others not brought before the trial court was charged with two counts. On the first count, he was charged with robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. The particulars of this offence were that on 15th November 2022 at around 2300 hours within Bomet County, jointly with others not before Court, robbed FCK of her mobile phone make Tecno Spark 4 valued at Kshs 13,000/= and cash money amounting to Kshs 3,000/=, all the property totalling to Kshs 16,000/= and immediately after the time of such robbery raped the said FCK and cut her left palm while armed with pangas. 2.On the second count, he was charged with gang rape contrary to Section 10 of the Sexual Offences Act. The particulars of this offence were that on 15th November 2022 at around 2300 hours within Bomet County, in association with others not before Court, intentionally and unlawfully caused his penis to penetrate the vagina of FCK without her consent. 3.The Appellant faced an alternative charge of committing an indecent act contrary to Section 11(a) of the Sexual Offences Act. The particulars of the offence were that on 15th November 2022 at around 2300 hours within Bomet County, in association with others not before Court, intentionally and unlawfully touched the vagina of FCK with his penis against her will. 4.The Appellant pleaded not guilty to the counts before the trial Court and a full hearing was conducted. The prosecution called five (5) witnesses in support of its case, while the Appellant testified and called one witness in aid of his defence. 5.At the close of the prosecution case, the trial Court ruled that a prima facie case had been established against the Appellant and he was put on his defence. 6.At the conclusion of the trial, the Appellant was convicted of the first count of robbery with violence and sentenced to 30 years imprisonment. He was also convicted of the second count of gang rape and sentenced to serve 15 years imprisonment. The sentences were to run concurrently. 7.Being dissatisfied with the Judgment dated 27th October 2023, the Appellant, Ezra Kipruto Mutai appealed to this Court against his sentence and conviction. This being the first appellate Court, I have a duty to re-evaluate the evidence on record afresh and come to my own conclusion. 8.I hereby proceed to summarise the Prosecution’s and Respondent’s case in the trial court as well as their respective written submissions in the present Appeal. The Prosecution’s Case. 9.It was the Prosecution’s case that on the material day (15th November 2022), the Appellant and others not before Court violently robbed FCK (PW1) off her mobile phone make Tecno Spark 4 and Kshs 3,000/= in cash before gang raping her. The victim (PW1) stated that she was attacked by three men when the boda boda she was on made stop to check on its fuel level. PW1 stated that the attackers blindfolded her, took her to a secluded place where they raped her in turns. PW1 further stated that she was hit on her face, lips and was cut on her hand before they made away with her mobile phone and cash money. 10.It was the Prosecution’s case that the Appellant was positively identified by the victim (PW1) through an identification parade. The Appellant’s Case. 11.The Appellant (DW1) denied committing the offence. DW1 testified that he was arrested by Victor on allegations that he had beaten him up and stole his trousers. DW1 further testified that he was taken to an identification parade while at the police station and the victim pointed him out. 12.It was DW1’s testimony that he did not know the victim. It was DW1’s further testimony that he was at home asleep on the material day and further that he had a testicle problem and could not commit the offence of gang rape. 13.I have gone through and given due consideration to the trial Court’s proceedings and the home-made grounds of appeal filed on 21st November 2023. The following issues arise for my determination: -i.Whether the Prosecution proved its case beyond reasonable doubt.ii.Whether the Defence casts doubt on the Prosecution case.iii.Whether the sentence was harsh and excessive. I. Whether the Prosecution proved its case beyond reasonable doubt. 14.Under this heading, I shall cover both count 1 and 2. The Appellant was charged with the offence of robbery with violence contrary to section 295 as read with section 296 (2) of the Penal Code. Section 295 of the Penal Code defines robbery as: -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. 15.Section 296 of the Penal Code states as follows: -(1)Any person who commits the felony of robbery is liable to imprisonment for fourteen years.(2)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. (Emphasis mine) 16.The Court of Appeal in the case of Johana Ndungu v Republic [1996] KECA 187 (KLR) set down the ingredients of robbery with violence by stating thus: -“In order to appreciate properly as to what acts constitutes an offence under section 296 (2) one must consider the sub-section 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) which we give below and any one of which if proved will constitute the offence under the sub-section: 1.If the offender is armed with any dangerous or offensive weapon or instrument, or 2.If he is in company with one or more other person or persons, or 3.If, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other violence to any person.” 17.More recently, Mrima J. in Jeremiah Oloo Odira v Republic [2018] KEHC 2195 (KLR) elaborated on the offence of robbery with violence as follows: -“Robbery is committed when a person steals anything capable of being stolen and immediately before or after the theft the person uses actual violence or threatens to use actual violence on the holder of the thing or the property so as to either obtain or retain the stolen thing or so as to prevent or overcome any resistance thereto. Two things must therefore be proved for the offence of robbery to be established: Theft and the use of or threat to use actual violence.On the other hand, the offence of robbery with violence is committed when robbery is proved and further if any one of the following three ingredients are established: -i.The offender is armed with any dangerous or offensive weapon or instrument, orii.The offender is in the company of one or more other person or persons, oriii.The offender at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person” 18.The elements of robbery with violence are disjunctive and not conjunctive. This was explained by the Court of Appeal in Dima Denge Dima & Others v Republic [2013] KECA 480 (KLR) where it held: -“…………the elements of the offence under Section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to found (sic!) an offence of robbery with violence…….” (Emphasis mine) 19.FCK (PW1) testified that on the material day, she was attacked by three men, who hit her on her face and lips and further cut her on her hand before robbing her off her mobile phone and Kshs 3,000/= in cash. PW1 further testified that she was able to identify the Appellant and picked him out from an identification parade. When PW1 was cross examined, she testified that there was sufficient light on the material night due to the presence of street lights. PW1’s testimony on the theft of her mobile phone and money remained uncontroverted upon cross examination. 20.Geoffrey Cheruiyot Kirui (PW2) who was a Clinical Officer testified that he examined PW1 and found that she sustained soft tissue injuries on her head with visible bruises on her neck and a count wound on her hand and upper limb around the thigh. When PW2 was cross examined, he testified that the injuries were classified as harm. 21.No. 23xx81 Inspector Noor Abubakar (PW3) testified that he conducted an identification parade and the Appellant was standing between the 2nd and 4th person was positively identified by the victim. With regards to identification parades, the Court of Appeal in the case of Samuel Kilonzo Musau v Republic [2014] KECA 372 (KLR) held that: -“The purpose of an identification parade, as explained in KINYANJUI & 2 OTHERS VS REPUBLIC (1989) KLR 60, “is to give an opportunity to a witness under controlled and fair conditions to pick out the people he is able to identify, and for a proper record to be made of that event to remove possible later confusion. It is precisely for that reason that courts have insisted that identification parades must be fair and be seen to be fair. Scrupulous compliance with the rules in the conduct of identification parades is necessary to eliminate any unfairness or risk of erroneous identification. In particular, all precautions have to be taken to ensure that a witness’s attention is not directed specifically to the suspect instead of equally to all persons in the parade. Once a witness has properly identified a suspect out of court, the witness is allowed to identify him on the dock on the basis that such dock identification is safe and reliable, it being confirmed by the earlier out of court identification.” 22.Additionally, in the case of Donald Atemia Sipendi v Republic [2019] KEHC 10855 (KLR), the Court stated: -“Identification parade procedures are regulated by Police Force Standing Orders now under the National Police Service Act 2011, and previously under the Police Act (repealed). The procedure for identification parades were also laid out in the cases of R V. Mwango s/o Manaa[16] and Ssentale v Uganda.[17] The rules include the following: -i.The accused has the right to have an advocate or friend present at the parade;ii.The witness should not be allowed to see the suspect before the parade and the suspects on parade should be strangers to the witness;iii.Witnesses should be shown the parade separately and should not discuss the parade among themselves;iv.The number of suspects in the parade should be eight (or 10 in the case of two suspects);v.All people in the parade should be of similar build, height, age and appearance, as well as of similar occupation, similarly dressed and of the same sex and race;vi.Witnesses should be told that the culprit may or may not be in the parade and that they should indicate whether they can make an identification; andi.As a recommendation, the investigating officer of the case should not be in charge of the parade, as this will heighten suspicion of unfair conduct in the courts. 23.I have looked at PW2’s testimony and cross examination. His cross examination indicated that he had taken precautions before the identification parade begun and further testified that the Appellant signed the report upon the conclusion of the parade. The victim (PW1) also identified the Appellant in the dock. In my view, the identification evidence against the Appellant was overwhelming and did not leave room for doubt. It is my finding therefore that the Appellant was positively identified as one of the perpetrators. 24.No. 23xx17 PC Franklin Obworo (PW5) testified that he was the investigating officer in this case. He testified that in the course of his investigations, the Appellant offered to take them to two scenes of crime. PW5 further testified that the first scene was near a villa and the second scene was a swamp and secluded place which was about 200 meters away. 25.It was PW5’ testimony that he dismissed the Appellant’s defence that he rescued the victim on the material night. This testimony was corroborated by No. 9xxx3 PC Patrick Nyaoke (PW4) who was the arresting officer. 26.From the above, I am satisfied that the Appellant was one of the perpetrators who committed the offence of robbery with violence. He was placed at the scene of crime and was positively identified by the victim. The victim suffered bodily harm during the commission of the offence as she suffered bruises and cut wounds. 27.Flowing from the above, I am satisfied that the Prosecution sufficiently proved the elements of the offence of robbery with violence as contained in section 296 (2) of the Penal Code. 28.The Appellant was also charged with the offence of Gang rape. 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, 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. 29.The same Act defines gang as: - means two or more persons 30.Section 3 (1) of the Sexual Offences Act provides: -(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. 31.In the present case, for the offence of gang rape to be established, the following elements must be demonstrated: -i.Whether the victim (PW1) was penetrated separately by more than one male organ.ii.Whether she consented to the penetration.iii.Where the Appellants were positively identified. 32.In regards to penetration, the Clinical Officer (PW2) testified that upon examining the victim, he found that her labia majora was bruised, had lacerations and had a whitish discharge. PW2 further testified that he also found epithelial cells and it was professional opinion that the victim had been penetrated. He produced the treatment notes, PRC Form and P3 Form as P. Exh 1, 2 and 3 respectively. I have looked at the exhibits and its findings corroborate PW2’s testimony on penetration. 33.The victim (PW1) testified that the Appellant in the company of two other men, raped her in turns. This testimony was uncontroverted upon cross examination. From this testimony and medical evidence above, I am satisfied that the victim was penetrated. 34.The Prosecution also had to prove that the victim did not consent to the penetration. Consent is defined in Section 42 of the Sexual Offences Act as: -For the purposes of this Act, a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice. 35.In the case of Republic v Francis Otieno Oyier [1985] KECA 55 (KLR) the Court of Appeal held as follows: -“The lack of consent is an essential element of the crime of rape. The mens rea in rape is primarily an intention and not a state of mind. The mental element is to have intercourse without consent or not caring whether the woman consented or not.To prove the mental element required in rape, the prosecution had to prove that the complainant physically resisted or, if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist.” 36.Similarly, in the case of Peter Wanjala Wanyonyi v Republic [2021] KEHC 4918 (KLR), Kimaru J. (as he then was) persuasively held that: -“The burden of proof lies upon the prosecution to prove that the sexual intercourse was without the consent or against the will of the complainant. A woman is said to consent only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power, to act in a manner that she wants. Consent may be either expressed or implied depending upon the nature and circumstances of the case”. 37.PW1 testified that on the material day, the Appellant and others not before court blindfolded her before they raped her. PW2 further testified that she was hit on her face and lips and was cut on her hands. The clinical officer (PW2) testified that he found that the victim has bruises on her face and cut wounds on her hand. The clinical officer’s (PW2) findings corroborated the victim’s testimony that she had been physically assaulted. 38.In my view, the above action did not signify consent on the part of the victim. The perpetrators used force to achieve their goal. It is therefore my finding that the victim did not give consent for the penetration. 39.As I have stated earlier in this Judgement, the Appellant was positively identified as one of the perpetrators. It is my finding therefore that the prosecution proved the charge of gang rape. 40.In total, I do find that the Prosecution successfully proved the offences of robbery with violence and gang rape. II. Whether the Defence casts doubt on the prosecution case. 41.I have already set out the defence of the Appellant earlier in this Judgment. I have considered the defence carefully and I have noted that the Appellant denied knowing the victim and committing the offence. The Appellant testified that he was arrested by a person called Victor. I have looked at the arresting officer’s (PW4) testimony and this issue was not raised in cross examination. Further, the Appellant testified that he slept in the same house as his brother on the material night and could not have committed the offence. His brother (DW2) testified that he was not at home on the material night but he was sure his brother (Appellant) slept at home. In my view, DW2’s testimony was unconvincing and did not aid DW1’s defence in any way. 42.That said, as a whole, the Appellant’s defence was shallow, weak and an afterthought. The Appellant’s defence did not shake the Prosecution’s case at all. III. Whether the sentence was harsh and excessive 43.Sentencing is at the discretion of the trial court but such discretion must be exercised judiciously and not capriciously. The trial court must be guided by the evidence and sound legal principles. 44.The penal section for the offence of robbery with violence is found in Section 296 (2) of the Penal Code which 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. 45.Having considered the circumstances of this case, it is my view that the 30-year prison sentence was reasonable and just. I have no reason to interfere with the trial court’s sentence and the same is upheld. 46.Regarding the offence of gang rape, 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, 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. 47.Having considered the circumstances of this case, it is my view that the 15-year prison sentence was reasonable and just. I have no reason to interfere with the trial Court’s sentence and the same is upheld. 48.In the end, the Appeal has no merit and is dismissed. JUDGMENT DELIVERED, DATED AND SIGNED THIS 24TH DAY OF JUNE, 2026.........................................HON. JULIUS K. NG’ARNG’ARJUDGEJudgment delivered in the presence of;Siele/Susan – Court AssistantsMs Koech for the StateAppellant