https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13077

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CRIMINAL APPEAL NO. E063 OF 2022** **GIBERT KIPSANG KOECH………………………………….….APPELLANT** **VERSUS** **REPUBLIC………………………………………………….……RESPONDENT** ***(Being an Appeal from the conviction and sentence by Hon. R Yator (PM) delivered on 9th September, 2022 in Molo Criminal Case No. 440 of 2019)*** **JUDGMENT** 1. In**Molo Criminal Case No. 440 of 2019**, the Appellant, **Gilbert Kipsang Koech,** was chargedwith the following offences:- **COUNT I: Robbery with violence contrary to Section 296 (2) of the Penal Code.** The Particulars are that on the night of 17th day of February at Arimi village in Elburgon area within Nakuru County, jointly with others not before Court, being armed with crude weapons namely pangas and timber wood, used the same and robbed Michael Gachie cash Kshs. 600, one radio, mobile phone make Mobitel and six chicken all valued at Kshs 9,140 and immediately before or immediately after the time of such robbery wounded the said Michael Gachie. **COUNT II: Rape Contrary to Section 3 (1) of the Sexual Offences Act No. 3 of 2006.** The Particulars are that on the night of 17th day of February 2019 at Arimi village in Elburgon area within Nakuru County unlawfully and intentionally caused his penis to penetrate the vagina of ZN by use of threats. **COUNT III: Defilement contrary to Section 8(1) as read with Section 3 of the Sexual** **Offences Act** **No. 3 of 2006.** The particulars are that on the night of the 17th of February, 2019, at Arimi Village in Njoro sub County Committed an act of inserting his penis into the vagina of CD, a girl aged 11 years. In the alternative, he faced a charge of committing an indecent act with a child contrary to **Section 11(1)** of the **Sexual Offences Act.** **COUNT IV: Defilement contrary to Section 8(1) (4) of the Sexual** **Offences Act** **No. 3 of 2006**. The Particulars are that on the night of 17th day of February 1019 at Arimi village in Elburgon area within Nakuru County intentionally and unlawfully caused his penis to penetrate the vagina of QR, a child aged 13 years. **Alternative Charge: Committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.** The Particulars are that on the night of 17th day of February 2019 at Arimi village in Elburgon area within Nakuru County intentionally touched the vagina of BV, a child aged 13 years. **COUNT V: Defilement contrary to Section 8(1) (4) of the Sexual** **Offences Act** **No. 3 of 2006.** The Particulars are that on the night of 17th day of February 2019 at Arimi village in Elburgon area within Nakuru County intentionally and unlawfully caused his penis to penetrate the vagina of BV a child aged 13 years. **Alternative Charge: Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.** The Particulars are that on the night of 17th day of February 2019 at Arimi village in Elburgon area within Nakuru County intentionally touched the vagina of BV, a child aged 13 years. 1. The Appellant pleaded not guilty to all the charges. The Prosecution availed six (6) witnesses in support of its case while the Appellant tendered sworn testimony in his defence. 2. After hearing both parties, the Trial Magistrate rendered her judgment on 9th September, 2022 whereby she acquitted the Appellant on **Counts III, IV** and **V** under **Section 215** of the **Criminal Procedure Code**. 3. She found him guilty on **Counts I** and **II** and convicted him accordingly. She sentenced him to fifty (50) years’ imprisonment on each of the two counts, the sentences to run concurrently. 4. Aggrieved by the decision, the Appellant preferred the instant appeal against both conviction and sentence on the following grounds:- 5. **That the Learned Trial Magistrate erred in law and in fact by placing undue reliance on the evidence adduced during trial to prove the incident before the Court.** 6. **That the Learned Trial Magistrate erred in law and in fact by failing to note that no Investigating Officer testified to prove the matter in accordance with the law.** 7. **That the Learned Trial Magistrate erred in law and in fact by disregarding that the investigation of the case was poorly conducted as reflected in the record.** 8. **That the Learned Trial Magistrate erred in law and in fact by failing to appreciate that the prosecution evidence was inconsistent.** 9. **That the Learned Trial Magistrate erred in law and in fact by rejecting the Appellant’s evidence without assigning reasons.** 10. The Appellant therefore prayed that this appeal be allowed, the conviction quashed, the sentence set aside, and that he be set at liberty. 11. The Appeal was heard by way of written submissions. Both parties complied by filing their respective submission. **Appellant’s submissions** 1. The Appellant contended that the offence of rape was not proved. He questioned how PW1 and PW2 could have identified him as the culprit when their heads were covered. He further argued that the medical evidence showed PW2’s private parts were normal and did not establish penetration. 2. As for the offence of robbery with violence, the Appellant argued that PW6’s testimony did not corroborate that of PW1 regarding the stolen items. Further, that PW6 failed to furnish an investigation report to show what he witnessed at the scene. He added that since he was not arrested with any of the items alleged to have been stolen, the charge was not proved against him. 3. The Appellant relied on ***Shaban Bin Donald vs Republic* [1940] EAC**, Njihia vs Republic [**1986] KLR 422** as well as ***Sakwa vs Republic* [2023] KECA 732 (KLR)** to argue that he was not found in possession of any of the items alleged to have been stolen. 4. Further, he argued that no identification parade was conducted to identify him as the offender. He submitted that the circumstances were not favourable and that his being identified merely by having dreadlocks could not serve as a reliable yardstick for identification. 5. The Appellant further submitted that that hat the Court was not told of what became of the timber that was used to hit PW1, yet PW1 testified that the timber had been left behind. The Appellant therefore argued that nothing was brought to show that a weapon was used during the robbery. 6. The Appellant further argued that there were inconsistencies with the witness testimonies. According to the Appellant, it is not clear what happened when PW1 allegedly went to the police station on the night of the incident. Further, the statement of PW6 is not clear as to what informed his visit to PW1’s home. 7. The Appellant submitted that the brother of PW1 from the anti-stock theft police and the assistant chief were never called to testify on what led to the arrest and the information given to the arresting officer. That he was placed at the anti-stock theft police station by the testimony of PW1. He questioned the link between the chief and the police station where he was taken to and identified. He therefore argued that nothing in the investigation linked him to the offence. 8. The Appellant relied in the case of ***Bukenya vs Uganda* [1972] EA 549** to argue that the prosecution failed to call crucial witnesses, relied on uncorroborated evidence and further, that their evidence was full of inconsistencies. 9. The Appellant further relied on **Sentale v Uganda [1968] EA 365–368** to argue that the burden of disproving his alibi lay with the prosecution. He maintained that the Trial Court failed to properly consider his defence. 10. In conclusion, he submitted that the prosecution did not prove its case beyond any reasonable doubt to warrant the conviction and sentence passed by the trial court. **Respondent’s submissions** 1. In opposing the appeal, the Respondent placed reliance on **Johana Ndungu v Republic [1996] eKLR** where the Court of Appeal set out the ingredients of the offence of robbery with violence under **Section 296(2)** of the **Penal Code**. 2. Further, the Respondent cited **Dima Ndege & Others v Republic [2013] eKLR,** where the Court reiterated the principles governing identification evidence and further that one element was sufficient to find an element of robbery with violence. 3. The Respondent argued that although no recoveries were made, nothing cast doubt on the identity of the Appellant. He was firmly identified by all the victims through his clothes, physical appearance, and hairstyle. That the lighting was sufficient. 4. The Respondent further submitted that there was no need for an identification parade, the reason being that when PW1 went to check on the stolen chickens at the Anti‑Stock Theft Unit, he found the Appellant and identified him. Therefore, the threshold for proving the offence of robbery with violence was met. 5. Regarding the offence of rape, the Respondent submitted that PW2’s testimony was corroborated by PW1, who was next to her even though his face was covered. The Respondent argued that there was sufficient lighting and that PW2 positively identified the Appellant as the assailant. 6. The Respondent therefore submitted that the evidence tendered by the Prosecution was cogent and remained unshaken by the Appellant. The Respondent maintained that the investigations conducted were above board, and in its view, nothing on record indicates that the evidence was lacking. 7. The Respondent further submitted that the Appellant’s own incriminating evidence in defence did not assist him. That the Trial Court properly evaluated the Appellant’s defence before concluding that he committed the offences. 8. In support of this position, the Respondent relied on **R v Turnbull [1976] 3 WLR 445,** where the English Court of Appeal laid down guidelines on the manner in which Courts should approach cases dependent on visual identification, which was what gave the ground for the arrest. 9. On sentence, the Respondent submitted that the acts committed by the Appellant were violent and that the Appellant showed no remorse for the same. Therefore, he should serve the full sentence imposed by the Learned Magistrate. 10. In conclusion, the Respondent submitted that the Appeal herein lacks merit and therefore urged this Court to uphold the Appellant’s conviction and sentence. **Analysis and determination** 1. This Court’s duty as the first appellate Court is to re‑evaluate the evidence on record, subject it to fresh and exhaustive scrutiny and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses- see ***Okeno v Republic* *[1972] EA 32*.** 2. In the present case, the Appellant was specifically convicted of robbery with violence contrary to **Section 296(2)** of the **Penal Code** and of rape contrary to **Section 3 (1)** of the **Sexual Offences Act No. 3 of 2006** 3. As regards the offence of robbery with violence, the ingredients that have to be proved by the prosecution for the offence are well set out. Specifically, **Section 296 (2)** of the Penal Code provides that: ***“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.”*** 4. Further, the Court of Appeal in ***Johana Ndungu v Republic* [1996] KECA 187 (KLR**) *(*Cockar, Akiwumi & Shah JJA) set out the ingredients of the offence of robbery with violence under **Section 296(2)** of the Penal Code when it held thus: - ***“…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.*** ***Analysing the first set of circumstances, the essential ingredient, apart from the ingredients including the use or threat to use actual violence constituting the offence of robbery, is the fact of the offender at the time of robbery being armed with a dangerous or offensive weapon. No other fact is needed to be proved. Thus, if the facts show that at the time of commission of the offence of robbery as defined in S.295 of the Penal Code, the offender was armed in the manner afore-described then he is guilty of the offence under sub-section (2) and it is mandatory for the court to so convict him.*** ***In the same manner in the second set of circumstances if it is shown and accepted by the court that at the time of robbery the offender is in company with one or more person or persons, then the offence under sub-section (2) is proved and a conviction thereunder must follow. The court is not required to look for the presence of either of the other two sets of circumstances.*** ***With regard to the third set of circumstances, there is no mention of the offender being armed or being in company with others. The court is not required to look for the presence of either of these two ingredients. If the court finds that at or immediately before or immediately after the time of robbery the offender wounds, beats strikes or uses any other violence to any person (may be a watchman and not necessarily the complainant or victim of theft) then it must find the offence under sub-section (2) proved and convict accordingly.”*** 1. In this case, PW1 and PW2 testified that the Appellant struck PW1 with a piece of wood, while PW4 stated that the Appellant was armed with a panga. There were also threats issued, as PW3 and PW4 testified that they were threatened that they would be cut and warned not to leave the house. The first element was therefore satisfied. 2. The Appellant's grievance is that the Prosecution did not recover the weapon allegedly used to inflict injuries upon PW1 was not recovered; hence the charge was not proved, and the conviction was not sound. 3. This line of argument is a misapprehension of the statutory ingredients of the offense of Robbery with Violence under **Section 296(2)** of the Penal Code. The physical recovery of a weapon or the stolen items is not a statutory condition precedent. The Court of Appeal in **Ratemo v Republic [2025] KECA 2303 (KLR)** affirmed that the ingredients of robbery with violence are alternative, as it stated that: ***“It should however be noted that any one of the above elements, if proved, is sufficient to find a conviction. That is to say, the three elements of the offence are to be read disjunctively and not conjunctively. See Dima Denge Dima and Others v Republic [2013] eKLR.”*** 4. The witnesses further testified that the assailants were more than one. PW3 and PW4 described the other two, even noting their clothing, while PW2 narrated that she was raped by two of the assailants. The second element was accordingly met. 5. The P3 Form produced as evidence confirmed that PW1 sustained a 6cm wound to the head requiring stitching. There was swelling around the injured area. The PRC form indicated that PW2 was assaulted on the back, though without visible cuts. The third element was therefore proved 6. On the identity of the assailant, PW1 testified that though several assailants were present, he identified three of them, including the Appellant, who had not covered his face, unlike the others. The lights in the house were on. The attackers remained in the house for close to an hour. 7. In cross‑examination by the Appellant, PWI stated that he faced the Appellant and the time was long enough to look at the Appellant and identify him since the Appellant had not masked himself and took time struggling with the Appellant pushing the door. 8. He maintained that the clothes worn by the Appellant at the time of arrest were the same as those worn during the incident. He maintained that he identified the Appellant well, having struggled with him for some time. This Court is mindful that recognition is generally more reliable than identification of a stranger although it must still be approached with caution- see ***Wamunga v Republic* *[1989] KECA 47 (KLR*).** 9. In this case, it is clear from the evidence on record that PW1, PW2, PW3 and PW4 positively identified the Appellant through physical appearance, noting his dreadlocks. PW4 further identified the Appellant by his complexion, his build, clothing, and the fact that he was referred to as *“Master.”* All the witnesses testified that the Appellant was the one giving out instructions. 10. This court is satisfied that the prolonged period the assailants were in their home provided sufficient opportunity for observation. The witnesses were consistent in their accounts and their testimonies mutually reinforced each other. 11. The Appellant’s defence wasthaton 17th February 2019 he was in Nakuru, where he had been employed for about a month. He stated that on 21st February 2019 his aunt asked him to transport chickens to Nakuru, to which he agreed. That on 22nd February, 2019, upon boarding a vehicle, he was taken to the Anti‑Stock Theft Unit and placed in cells without being informed of the reason. Further, that PW1 came and identified him. He was questioned on where he was taking the chicken, and his aunt, who was the owner, later collected the chickens. 12. He maintained that he only learned of the robbery charges in Court and insisted that on the material day he was not in the area. He alleged that he was targeted because of his dreadlocks and framed after refusing to pay the police some money, asserting that nothing linked him to the offences apart from his hairstyle during the hearing. 13. He stated that no identification parade was done linking him to the offence. That no investigations were done by PW6 and that he was also not found with the stolen items. He stated that his was a case of mistaken identity and wondered if a brown man with Rastas would have still been arrested. That he could not have been identified in an offence that took place at midnight. 14. In cross-examination, he confirmed that he used to have dreadlocks and that while in the matatu, it was the driver who told him to go to anti-stock theft and no one told him to drive there. PW1 and PW2 were called to the station to identify their chicken and found that the person in possession of the chicken was the one who had robbed them. 15. This court finds that this sequence of events rendered the absence of an identification parade inconsequential. The circumstances herein were conducive to enable PW1 and PW2 to identify the Appellant on the material night and recognised him later at the station. 16. Further, PW2 maintained during trial that the voice was still the same as the one she heard the night of the offence. 17. On voice identification, the Court of Appeal in ***Karani v Republic [1985] KECA 91 (KLR)*** stated that:- ***“Identification by voice nearly always amounts to identification by recognition. Yet here, as in any other case, care has to be taken to ensure that the voice was that of the appellant, that the complainant was familiar with the voice and that he recognized it and that there were conditions in existence favouring safe identification.*** 18. This court is satisfied that the prolonged period the assailants were in their home provided sufficient opportunity for observation. The witnesses were consistent in their evidence and their testimonies mutually reinforced each other. That evidence was properly corroborated. There was no error in that identification. 19. Further, the period between the commission of the offence and the arrest was not unduly long, and the witnesses’ recollection remained fresh. They were still able to identify the Appellant with confidence; their recognition being reinforced by the proximity in time diminished the risk of error. 20. Contrary to the Appellant’s argument that the trial court did not consider his defence, the record shows that the trial Court analysed the same and arrived at the decision that the defence was a mere denial and therefore dismissed the same. This Court is satisfied with that finding. The appellant’s defence did not affect the prosecution case in any way. The conviction was safe. 21. As regards the charge of Rape, **Section 3 (1)** of the Sexual Offences Act provides:- “ ***A person commits the offence termed rape if-*** 22. ***he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;*** 23. ***the other person does not consent to the penetration; or*** 24. ***the consent is obtained by force or by means of threats or intimidation of any kind.*** 25. On penetration, PW2 testified that the Appellant told her to lie down, covered her face, got on top of her, and raped her. She stated that two men raped her. The Appellant argued that PW2 could not have identified him since her face was covered during the ordeal. 26. He submitted that once her head was covered, she could not have seen the assailant and therefore her identification was unreliable. He further argued that the offence of rape was not proven since PW2’s genital organs were normal. 27. The Court of Appeal in ***Kassim Ali v Republic* [2006] KECA 156 (KLR)** stated: ***“[12.] The correct legal position is stated in the case of Chila v.Republic [1967] E.A 722 at page 723 para C:*** ***“The Judge should warn … himself of the danger of acting on uncorroborated testimony of the complainant, but having done so he may convict in the absence of corroboration if he is satisfied that her evidence is truthful. If no such warning is given, then the conviction will normally be set aside unless court is satisfied that there has been no failure of justice.”*** ***[13.] Moreover, as the superior court correctly held, the commission of a sexual offence can be properly corroborated by circumstantial evidence (see Ongweya v. Republic [1964] EA 129).*** ***[14.]So the absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.”*** 1. Further, **Section 124** of the **Evidence Act** provides that:- ***“Notwithstanding the provisions of any other law, where the evidence of the alleged victim is admitted in accordance with this section in proceedings involving a sexual offence, the court may proceed to convict the accused person on the sole evidence of the victim if the court is satisfied that the alleged victim is telling the truth and records the reasons for such belief.”*** 1. This statutory exception underscores that corroboration, though desirable, is not mandatory in sexual offence prosecutions. The testimony of the complainant alone may suffice, provided the Court expressly finds it credible and records its reasons. The Trial Court did not record the reasons but was of the view that from the testimony of the victim she had been raped. 2. A perusal of the record reveals that although his head was covered, he testified to his wife being raped, though he did not say how he knew it. PW2 was the victim and narrated how the Appellant raped her together with another assailant. This Court is satisfied that there was penetration. 3. On identification of the Appellant as the assailant, this Court notes that PW2 testified that she saw the Appellant before her head was covered. The covering occurred after she had already identified him. He then proceeded to 4. In these circumstances, the Court is satisfied that the covering of PW2’s face did not vitiate the identification and therefore the prosecution proved the offence of rape without any doubt. 5. The Appellant also argued that the failure by the prosecution to call the area chief, PW1’s brother and the driver was fatal to their case as it broke the chain of reliability of the witnesses’ testimony and further could not have linked him to the offence. **Section 143** of the **Evidence Act** provides that:-***“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”*** 6. This Court reiterates that the prosecution is not obliged to call every possible witness but only such witnesses as are necessary to establish the charge. In ***Bukenya v Uganda* [1972] EA 549,** which the Appellant has relied on, it was established that failure to call certain witnesses is not necessarily fatal unless the remaining evidence is weak. 7. In this case, failure to call other witnesses did not weaken the prosecution’s case. Accordingly, the Court finds no merit in the Appellant’s argument on this point. 8. As regards the sentence, the record shows that the Appellant was a first offender. In mitigation he stated:- ***‘I pry court considers my period in prison as I have suffered. I left my family all alone, and I am the sole provider and I pray for a non-custodial sentence so that I can cater for my family .”*** 9. In sentencing, the trial court considered the mitigation and the circumstances under which the offence was committed before arriving at the impugned sentence that the Appellant serve 50 years' imprisonment on each of the two counts, that is Count 1 and 2. As per the statute, the offence of robbery with violence attracts a death penalty. The offence of rape attracts a minimum sentence of ten years’ imprisonment. The sentences were to run concurrently. 10. In this case, the circumstances under which the offences were o committed were deeply traumatic. PW1 and his wife (PW2) were subjected to the harrowing experience. Their minor children were in the house during this ordeal. 11. The cruelty was compounded when PW3 testified that the assailants left the scene laughing, underscoring the callousness with which the offences were perpetrated. Such were aggravating circumstances. The death penalty remains in the statutes as The Supreme Court decision **Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KESC 31 (KLR**) did not invalidate it. The sentences herein were within the trial Court’s discretion. In the premises, the sentences imposed for the two counts shall stand. 12. In conclusion, this Court makes the following orders: 13. **The Appeal is dismissed.** 14. **The conviction is upheld, and the sentence affirmed.** 15. **The sentence of 50 years imprisonment shall run from the date of arrest, being the 22nd day of February 2018.** 16. **Right of Appeal 14 days.** **Dated and signed at Nairobi this 6th Day of August, 2026.** **PATRICIA GICHOHI** **JUDGE** **Delivered at Nakuru this 11th Day of August, 2026.** **………………………** **DR. JOSEPH SERGON** **JUDGE**