Kimosop & another v Republic (Criminal Appeal E131 of 2022) [2026] KECA 1201 (KLR) (26 June 2026) (Judgment)

Kimosop & another v Republic (Criminal Appeal E131 of 2022) [2026] KECA 1201 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KECA 1201 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Appeal E131 of 2022 PM Gachoka, WK Korir & L Ndolo, JJA June 26, 2026 Between Hillary Kipchumba Kimosop 1st Appellant Mathew Kimwetich 2nd Appellant and Republic Respondent (Appeal from the judgment of the High Court at Eldoret (Majanja, J.) delivered on 18th June 2019 in HCCRA No 5 of 2018 Criminal Appeal 48 & 49 of 2018 (Consolidated) ) Judgment 1.The appellants, Hillary Kipchumba Kimosop and Mathew Kimwetich were charged, convicted and sentenced to 15 years’ imprisonment for the offence of gang rape contrary to section 10 of the Sexual Offences Act. 2.The particulars of the offence were that on 8th May 2017 at around 9:00 pm at [Particulars Withheld], Kimnai Sub-Location, in Kuserwo Location, within Elgeyo Marakwet County, in association with another, they willfully and unlawfully caused their genital organs namely penis to penetrate the genital organ namely vagina of RJN. 3.The prosecution case, as presented before the trial court is that on the night of 8th May 2017, the complainant was at work at a bar when she was called by the 1st appellant, who was in the company of the 2nd appellant, dragged to the house of the appellants’ mother, assaulted and raped by the appellants in turns. 4.The appellants’ appeal to the High Court was dismissed vide a judgment delivered on 18th June 2019. 5.In their initial grounds of appeal filed in this Court, the appellants had challenged both their conviction and sentence. However, when the appeal came up for hearing before us on 27th April 2026, the appellants indicated that they wished to abandon the appeal against conviction and proceed with the appeal against sentence only. The 1st appellant was present virtually from Eldoret Main Prison while the 2nd appellant was present from Tambach Prison. In their oral submissions, the appellants urged us to reduce the sentence to the period already served and therefore order their release. 6.Ms. Mukangu, Assistant Director of Public Prosecutions, opposed the appellants’ appeal against sentence, pointing out that the appellants, in committing the offence, were brutal to the complainant, causing her grievous harm. 7.The rule of thumb is that an appellate court will only interfere with a sentence meted by a lower court if the sentence is manifestly excessive or inadequate, if it is based on wrong principles or if the lower court ignored material facts. 8.The principles upon which an appellate court may interfere with a sentence were set out in Ogola s/o Owuor v Republic [1954] EACA as follows:“The court does not alter a sentence on the mere ground that if the members of the court had tried the appellant they might have passed a somewhat different sentence, and it will not ordinarily interfere with the discretion exercised by a trial judge unless…it is evident that the judge has acted upon some wrong principle or overlooked some material factors. To this we would also add a third criterion namely, that the sentence is manifestly excessive in view of the circumstances of the case…” 9.The appellants were charged, convicted and sentenced under section 10 of the Sexual Offences Act which provides as follows:10.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 than fifteen years but which may be enhanced to imprisonment for life. 10.It is on record that the appellants not only gang raped the complainant, but also assaulted her causing her grievous harm. More importantly, the sentence meted out against the appellants is the minimum provided by statute and as held by the Supreme Court in Republic vs. Joshua Gichuki Mwangi [2024] KESC 34 (KLR) where a minimum sentence is imposed by statute, courts have no room to interfere with such a sentence. 10.The appellants were handed the minimum sentence provided for the offence of gang rape. Their appeal which was restricted to sentence therefore fails and is dismissed. DATED AND DELIVERED AT ELDORET THIS 26TH DAY OF JUNE, 2026.M. GACHOKA C.Arb, FCIArb....................................JUDGE OF APPEALW. KORIR....................................JUDGE OF APPEALL.M. NDOLO....................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR