https://new.kenyalaw.org/akn/ke/judgment/keca/2026/938

Barasa v Republic (Criminal Appeal E032 of 2021) [2026] KECA 938 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 938 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E032 of 2021 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA May 15, 2026 Between Kennedy Toili Barasa Appellant and Republic Respondent (Being an appeal against the Judgment of the High Court of Kenya at Bungoma (Wendoh, J.) dated 23rd November, 2018 in HCCRA No. 90 of 2016) Judgment 1.The appellant was charged alongside one Tom Barabara in the Chief Magistrates Court at Bungoma in Criminal Case No. 1646 of 2011 with two counts of robbery with violence contrary to section 296(2) of the Penal Code; gang rape contrary to section 10 of the Sexual Offences Act; and defilement contrary to section 8(1) and (4) of the Sexual Offences Act. His co- accused was acquitted on all counts at the trial before the magistrate’s court. The appellant was however convicted on four counts and, after mitigation, sentenced to death on Count I, with the sentences on Counts II, III, and VI being held in abeyance. 2.Being dissatisfied with the said decision, the appellant preferred an appeal to the High Court at Bungoma being HCCRA No. 90 of 2016 on grounds that the trial court failed to consider the first report which never mentioned him; the evidence of the prosecution was full of contradictions; and the conditions were not favourable to proper identification. He prayed that the appeal be allowed, conviction be quashed, sentence set aside and he be set at liberty forthwith. 3.The first appeal was dismissed and the conviction and sentence of the trial court upheld by the High Court (Wendoh, J.) in the Judgment delivered on 23rd November, 2018. The learned Judge found that the prosecution proved beyond reasonable doubt all the ingredients of robbery with violence. 4.Being aggrieved by the outcome, he is now before us on a second appeal, challenging only the conviction on the counts of robbery with violence, on grounds that the learned Judge erred in fact and law in convicting him for the offence of robbery with violence without any evidence; and disregarding his testimony in its entirety. 5.For purposes of putting matters into perspective, and understanding how this appeal has ended before us, it is important to give a brief background. The circumstances of the case were that on 21st December, 2011, between1.00am and 3.30am, an attack was violently executed in a family home within Ndalu location in Bungoma North, by a group of persons armed with metal bars, pangas and simis, who in the course of the attack, stole an assortment of properties; and injured their targeted victims including fatalities on two of them who were father and son; they also sexually violated two of the female members of the family, namely a mother and her minor daughter. 6.The appellant’s defence was that he had been involved in an accident on the night in question, having been hit by a cyclist, he dragged himself home in Ndalu, and went to sleep. The next morning his brother accompanied him to hospital, but he was arrested and taken to the police station; and later blood samples were drawn from him. In a nutshell, he denied committing the offences. 7.In dismissing the appeal, the learned Judge pointed out that:“In the instant case, PW2, 3 and 4 vividly narrated the events of the fateful right. PW2 said that the robbers who entered his house were three; they were armed with iron bars with which they assaulted PW2, PW1 confirmed the injuries that the witnesses sustained. PW2 and 3, narrated that cash money was taken from them, money was withdrawn from their M-pesa accounts and lastly, his brother and father who lived in the same compound were violently slain. Violence was also visited on PW3 who was raped though she was pregnant and on PW4 a small child of 12 years. I am satisfied that all the three ingredients necessary to prove an offence of robbery with violence were proved….Like the trial court, since the DNA evidence placed the appellant at the scene; I am satisfied that the prosecution proved that the appellant is one of the people who robbed PW2 and 3. It is during the robbery that Dan Anguche and James Tom Anguche met their death. I also find that it is the appellant who raped PW2 and the convictions on Counts I, II and III are sound….Since the appellant was not charged with defiling PW4, I find that the trial court erred in convicting the appellant on Count VI for which he was not charged. The appellant is therefore acquitted of Count VI.” 8.The trial magistrate had sentenced the appellant to death, but in dismissing the appeal on conviction and sentence, the learned Judge pronounced a life imprisonment sentence. 9.At the plenary hearing of this appeal Miss Lukasile appeared for the appellant while Miss Mwaniki, the learned prosecution counsel, appeared for the respondent. The appeal is however limited to contesting the convictions only. 10.This being a second appeal, the jurisdiction of this Court as specified under Section 361 of the Criminal Procedure Code is limited to consideration of matters of law only. As was stated by this Court in Chemagong vs Republic, [1984] KLR 611.“A court on Appeal will not normally interfere with the finding of fact by the trial court, whether in a civil or criminal case, unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principle in reaching the finding he did.” 11.We have considered the record of appeal, the submissions by the respective parties and the law. The two courts below made concurrent findings that on the material night there was a violent incident of robbery in Ndalu location, where a family was robbed of property; life was lost and two survivors suffered sexual violation. Bearing in mind this Court’s jurisdiction as observed, and having the main issue of law that remain for our determination is whether the appellant was positively identified as having participated in the robbery that took place on the material night. 12.In the written submissions prepared by Ms. Lukasile, she contends that none of the prosecution witnesses pointed out the appellant nor did any of them allude to having seen him at the scene of crime; that at the identification parade it was the appellant’s co-accused who was identified, and she is totally puzzled as to how it is the appellant who was not seen at the crime of scene was convicted. 13.Counsel laments that the prosecution also failed to avail the Investigating Officer who could have shed light on how and why they zeroed in to arrest the appellant at the preliminary stage of investigations when there was no direct or indirect evidence linking the appellant to the offence. It is thus submitted that it is reasonable to assume that had the prosecution called the investigating officer, then he could have given evidence in favour of the appellant. 14.It is further argued that all arrests were based on reasonable suspicion, either because an individual has been adversely mentioned, or because he was found within the vicinity of the scene of the crime. That in the present case, none of the foregoing was ever established; and that it is the investigating officer who could have guided the trial court on why blood samples from the appellant were drawn when no one had mentioned him. It is also pointed out that the DNA evidence was availed later in the day when the prosecution had already charged the appellant with the offence. 15.In challenging the conviction, the appellant argues that there was also no evidence that he was seen armed with an offensive weapon. The appellant urges this Court to allow the appeal and find that the evidence did not prove the offence to the required standards, reference is made to the case of Musyimi v Republic (Criminal Appeal 48 of 2021) [2023] KECA 1156 (KLR). 16.The appellant’s Counsel points out that it was the prosecution’s position that the appellant had earlier escaped arrest in another offence. That the question that should disturb this Court’s mind is whether or not the appellant was being punished/victimized for having fled from custody. 17.In opposing the appeal, counsel for the respondent referred to Section 296(2) of the Penal Code, and submitted that the evidence presented met the threshold of what constitutes robbery with violence, pointing out that learned Judge found that the prosecution proved beyond reasonable doubt all the ingredients including for instance, that the offender was armed with dangerous weapons, including metal bars, pangas, and simis; the offender was in company with others; and the offender inflicted actual violence on the victims, including assault causing death. 18.Indeed, as submitted by the respondent, the jurisprudence is settled that proof of any one of the three ingredients under section 296(2) suffices for conviction. This Court in Oluoch v Republic [1985] KLR held:"In order to prove the offence of robbery with violence, the prosecution needs to show that the accused was armed with any dangerous or offensive weapon or instrument; or that he was in the company of one or more other person or persons; or that, at or immediately before or immediately after the time of the robbery, he wounded, beat, struck, or used any other personal violence to any person. Proof of any one of these three elements is sufficient."As the learned judge noted:“PW2, PW3 and PW4 vividly narrated the events of the fateful night. PW2 said that the robbers who entered his house were three; they were armed with iron bars with which they assaulted PW2. PWI confirmed the injuries that the witnesses sustained. PW2 and PW3 narrated that cash money was taken from them, money was withdrawn from their M-Pesa accounts, and lastly, his brother and father who lived in the same compound were violently slain. Violence was also visited on PW3 who was raped though she was pregnant and on PW4 a small child of 12 years.”In Johana Ndungu vs Republic [1996] eKLR this Court explained the offence of Robbery with violence as follows:“In order to appreciate properly as to what acts constitute 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, or2.If he is in company with one or more other person or persons, or3.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.” 19.The evidence as re-evaluated by the 1st appellate court, in our assessment reaffirms the concurrent findings by the two lower courts that a violent robbery did take place. 20.With regard to identification, the respondent points out that although none of the witnesses initially identified the appellant at the scene, DNA evidence produced by the Government Analyst, conclusively linked him to the offences. Indeed, we take note of the learned Judge’s acknowledgement that none of the prosecution witnesses PW2, PW3 and PW4 positively identified the appellant as being at the scene on the night of the robbery but the forensic results linked the appellant to the rape and defilement of the victims; and placed the appellant squarely at the scene of crime, as to conclude that the person who raped PW3 and PW4 was part of the group of robbers. We do not detect any error of law or misapplication of legal principles, in the conclusion arrived at by the learned Judge on this issue. 21.The appellant further argues that the charge of gang rape was not supported by evidence. The trial court, and the first appellate Court, carefully analysed this issue. In rejecting the defence the learned judge stated:“a bare denial and (sic) unbelievable. Both PW3 and 4 told the court that they were each raped/defiled by one person and I am satisfied beyond any doubt that it is the appellant and therefore the trial court arrived at a correct finding in Count IV that pw3 was not gang raped but was raped by a single person, the appellant….The DNA profile generated from the orange pants (Ex. E.) belonging to PW3 matched those generated from blood sample of Kennedy Toili Barasa. Secondly, the DNA profile generated from the blood stains on the skirt marked G, belonging to PW4, were a mixture of the DNA profiles generated from the blood samples of Kennedy Toili Barasa and unknown female” 22.We do not think we need to belabour this point save to say that the learned Judge carefully considered the point to conclude that the incontrovertible DNA evidence placed the appellant at the very scene of the robbery, in active participation in the violence. It corroborated the testimony of the complainants and eliminated the possibility of mistaken identity. On such evidence, we concur with the respondent that the trial court was entitled indeed bound- to convict, as the analysis and evaluation were satisfactorily done and the conclusion was sound. We concur with the respondent that applying this principle, the trial court correctly found that although PW3 was not gang raped, she was indeed raped by the appellant, as proved by both her testimony and the DNA report. We concur that the conviction under Count III was therefore lawful, proper, and in keeping with the evidence adduced. Indeed, the eyewitness accounts, medical findings, and forensic DNA evidence present a seamless narrative that points irresistibly to the appellant's guilt. The holdings Joseph Kaberia Kahinga & 11 Others v Attorney General [2016] eKLR provide the legal foundation upon which the trial court acted. 23.In response to the appellant’s argument that the charge of gang rape was not supported by evidence, the respondent’s counsel submits that the trial court, and the learned Judge carefully analysed this issue, observing that while the DNA findings demonstrated that it was the appellant who raped the surviving victims. There was no error in the approach the learned Judge took, as section 179 of the Criminal Procedure Code, which provides:When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the lesser offence although he was not charged with it. 24.In this regard, the respondent urged us to consider the case of Joseph Kaberia Kahinga & 11 Others v Attorney General (Supra), in which the Court underscored that section 179 Criminal Procedure Code is intended to ensure that offenders do not escape justice on the basis of technicalities when the evidence establishes a cognate or lesser offence, holding that:Section 179 of the Criminal Procedure Code empowers courts to convict for a cognate or lesser offence proved by the evidence, even where the accused was not originally charged with that precise offence. The rationale is to prevent injustice where the evidence adduced points conclusively to guilt, but on slightly different particulars than those framed in the charge sheet. 25.Regarding the appellant contention that the trial court erred by disregarding his testimony, the respondent submits that this ground is without merit; that the prosecution had adduced cogent, credible, and corroborated evidence proving all the ingredients of the offence beyond reasonable doubt, the trial court was entitled to reject the accused person's testimony if it does not shake that evidence. To support this position, the respondent drew support from this Court’s decision in Mwaura v Republic [1987] KLR 645 in which it was held that:"The mere denial by an accused, without more, does not dislodge clear and consistent evidence tendered by prosecution witnesses. The trial court is entitled to reject the defence where it does not raise a reasonable doubt in the prosecution case." 26.We refer to Okethi Okale & Others v Republic [1965] EA 555, in which the former Court of Appeal for Eastern Africa which stressed that:“The duty of the court is always to weigh the evidence of the prosecution against that of the defence. If the defence puts the prosecution case in doubt, the accused is entitled to an acquittal. Where, however, the defence is a mere denial or afterthought, the court is entitled to reject it." 27.Indeed, in the present case, the trial court properly and critically analyzed the appellant's testimony, which amounted to a mere denial and allegation of mistaken identity; this was weighed against the overwhelming prosecution evidence, particularly the forensic evidence, which directly linked the appellant to the sexual offences through exhibits recovered from the complainants. The evidence further established the elements of robbery with violence under section 296(2) of the Penal Code, and the medical evidence corroborated the occurrence of sexual assault. We agree with the respondent that the appellant's assertions did not dislodge this consistent chain of evidence. 28.Ultimately, we find that the conviction was not only supported by sufficient evidence; it was compelled by the weight of the record. 29.We need not address this issue, as the appellant’s counsel had already indicated that he was not pursuing the appeal on sentence. The upshot is that the appeal lacks merit and is dismissed. DATED AND DELIVERED AT KISUMU THIS 15TH DAY OF MAY, 2026.ASIKE-MAKHANDIA......................................JUDGE OF APPEALH. A. OMONDI......................................JUDGE OF APPEALL. KIMARU......................................JUDGE OF APPEALI certify that this is a true copy of the original.Deputy Registrar