https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6814

Andove v Republic (Criminal Appeal E150 of 2025) [2026] KEHC 6814 (KLR) (20 May 2026) (Judgment) Neutral citation: [2026] KEHC 6814 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E150 of 2025 DR Kavedza, J May 20, 2026 Between Luka Stanley Andove Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered by Hon. Z. Abdul (P.M) on 24th July 2025 at Kibera Chief Magistrate’s Court, Criminal Case No. E1755 of 2024 Republic vs Luka Stanley Andove) Judgment 1.The Appellant was charged with seven counts and, upon conclusion of a full trial, was convicted on all counts. In Counts I, II, and III, he was convicted of the offence of robbery with violence contrary to section 296(2) of the Penal Code. In Counts IV, V, and VI, he was convicted of the offence of rape contrary to section 3(1)(a)(c) as read with section 3(3) of the Sexual Offences Act, No. 3 of 2006. In Count VII, he was convicted of the offence of attempted rape contrary to section 4 of the Sexual Offences Act, No. 3 of 2006. He was sentenced to death on Counts I, II, and III, and to life imprisonment on Counts IV, V, VI, and VII. 2.Aggrieved, he filed an appeal challenging his conviction and sentence. In the petition for appeal. In his petition of appeal dated 23rd October 2025, he challenged the totality of the prosecution’s evidence against which he was convicted. He complained that the trial court failed to consider his defence. Further, the trial court failed to consider his mitigation during sentencing. He urged the court to quash his conviction and set aside the sentence imposed. 3.This being a first appeal, it is the duty of this court, as the first appellate court, to reconsider, re-evaluate, and re-analyse the evidence afresh and come to its conclusion on that evidence. The court should, however, bear in mind that it did not see witnesses testify and give due consideration to that. (See Okeno v Republic [1972] EA 32). 4.The prosecution called eleven witnesses in support of its case against the Appellant. PW1 V.W testified that on 7th February 2024, she was lured by the Appellant (introduced via Millicent) with a promise of house-help employment in Lenana. While walking through a forest route, the Appellant produced a knife and threatened to call others to rape and kill her. He strangled her, snatched her phone, and raped her. She reported the matter the following day at Mutuini Police Station. She received treatment at Coptic Hospital, and later positively identified the Appellant at an identification parade. 5.PW2 S.B stated that on 16th February 2024, the Appellant entered her compound pretending to look for a cleaner. He lured her with a job offer, took her number, and called her early on Sunday. He led her to a forest thicket, threatened to kill her, raped her, and snatched her Itel phone (valued at Kshs. 5,000). He then withdrew money from her M-Shwari account. She escaped and reported to Mutuini Police Station. She received treatment at Nairobi Women's Hospital and positively identified the Appellant at the identification parade. 6.PW3 I.M testified that on 27th July 2024, she was contacted about a house-help job. The Appellant called and picked her from the road (her husband, PW6 Nixon Keya, spoke with him), and led her through Lenana forest. He grabbed her, produced a knife, a panga, a rope, and a poisonous substance. He threatened to kill her, took her Tecno phone (Kshs. 10,000), and raped her. She reported the incident with her husband at Mutuini Police Station. She received treatment at Nairobi Women's Hospital and positively identified the Appellant at the identification parade. 7.PW4 Jacinta Mwihaki stated that on 20th August 2024, the Appellant (introducing himself as Alex, a gardener) contacted her via her daughter PW5 Daisy Kerubo Rioba with a house-help job offer for a police officer in Lenana. The next morning, her husband, PW7 David Chege, escorted her part of the way. In the forest, the Appellant strangled her, attempted to rape her, but she resisted by holding his penis. He then took her phone, demanded Kshs. 5,000, and later escorted her out before fleeing. She reported the incident at Mutuini Police Station. She took police officers to the scene and received a medical examination at Nairobi Women's Hospital, and positively identified the Appellant. 8.PW5 Daisy Kerubo (daughter of PW4) confirmed introducing the Appellant to her mother and positively identified him at the identification parade. 9.PW6 Nixon Keya (husband of PW3) and PW7 David Chege (husband of PW4) corroborated escorting their respective wives on the material mornings, meeting the Appellant, and later positively identifying him at the identification parade. PW7 confirmed confronting the Appellant by phone.PW8, John Njuguna, a Clinical Officer from Nairobi Women's Hospital, confirmed treating PW2, PW3, and PW4.4. PW3, who showed signs of recent sexual assault, had spermatozoa detected. PW2 had no recent injuries. PW4 was treated for attempted rape. The respective P3 and PRC Forms were produced. 10.PW9 CIP Kennedy Gitau, the then Deputy OCS at Mutuini Police Post, conducted the identification parades on 24th August 2024. The Appellant participated and was positively identified by PW1, PW2, PW3, and PW4 in separate parades. The forms were produced as exhibits. 11.PW10, from Coptic Hospital, confirmed examining PW1 and finding signs consistent with rape. The P3 and PRC Forms were produced. 12.PW11 PC Douglas Ombati, the Investigating Officer, confirmed the separate reports by the complainants, the similar modus operandi employed by the Appellant, which was luring women with false house-help job offers in the Lenana area, and the arrest of the Appellant. All participating witnesses positively identified the Appellant at the parades, having interacted with him on their respective occasions. 13.At the close of the prosecution's case, the Appellant was put on his defence. He gave unsworn testimony denying all charges. He claimed that on the dates alleged by PW1 and PW2, he was in his rural home and not in Nairobi. He further stated that he knew PW4 Jacinta Mwihaki from previous interactions as a boda boda operator. 14.After a full trial, he was convicted and sentenced accordingly. 15.The appeal was canvassed by way of written submissions by the parties, which have been duly considered. The key ingredients for the offence of robbery with violence are set out in section 296(2) of the Penal Code, which 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”. 16.In the present matter, the Appellant faced multiple counts involving several women who were lured under the false pretext of being employed as house-help in the Lenana area, only to be robbed and subjected to sexual violence. 17.The first ingredient is proof of theft. PW1 V.W testified that the Appellant snatched her mobile phone during the attack. PW2 S.B stated that the Appellant took her Itel phone valued at Kshs. 5,000 and withdrew money from her M-Shwari account. PW3 I.M confirmed that the Appellant took her Tecno phone valued at Kshs. 10,000. In each case, the theft occurred immediately after or during the violent confrontation. This element of theft was proved beyond reasonable doubt in respect of each complainant. 18.The second ingredient requires proof of the use or threat of violence at, immediately before, or immediately after the theft. The evidence disclosed repeated acts of personal violence. PW1 was strangled and threatened with a knife before and during the rape, after which her phone was taken. PW2 was held by the neck, threatened with death, and raped before the Appellant snatched her phone and demanded her PIN. PW3 was grabbed, threatened with a knife, panga, rope, and poisonous substance, and raped, after which her phone was taken. PW4 Jacinta Mwihaki was strangled from behind, pushed to the ground, and subjected to a violent struggle during which the Appellant attempted to rape her and took her phone while demanding Kshs. 5,000. 19.Medical evidence from PW8, a Clinical Officer at Nairobi Women Hospital, and PW10 from Coptic Hospital corroborated the injuries and trauma suffered, including vaginal injuries and spermatozoa in PW3’s case. These acts clearly satisfy the requirement of actual personal violence or threat thereof. 20.The third ingredient is satisfied where the offender is armed with a dangerous or offensive weapon. The Appellant was repeatedly armed with a knife, which he produced and used to threaten the victims. PW1, PW2, and PW3 all testified to the production and use of the knife to compel submission. In PW3’s case, he additionally brandished a panga and rope. These weapons were deployed both to facilitate the sexual assaults and to effect the theft of the mobile phones. The production and threatened use of the knife constituted being armed with a dangerous weapon within the meaning of section 296(2). 21.Furthermore, the evidence established a pattern of calculated violence immediately connected to the theft. The luring of the complainants to isolated forest paths, the sudden turning against them, the strangulation, threats of death or calling accomplices, and the subsequent taking of phones and money formed one continuous transaction. The violence was not merely incidental but instrumental in overpowering the victims and completing the robbery. 22.The final ingredient concerns the proper identification of the Appellant. All participating witnesses, PW1, PW2, PW3, PW4, PW5, Daisy Kerubo, PW6 Nixon Keya, PW7 David Chege, and others, positively identified the Appellant at properly conducted identification parades overseen by PW9 CIP Kennedy Gitau. Each witness had ample prior interaction with the Appellant while he posed as an agent of employment. PW11 PC Douglas Ombati, the investigating officer, confirmed the similar tactic employed across all cases. The identifications were reliable, conducted shortly after the incidents, and with adequate opportunity for recognition. 23.The Appellant’s unsworn defence amounted to a bare denial. He claimed an alibi for the dates involving PW1 and PW2 and alleged prior acquaintance with PW4 as a boda boda operator. This defence was insufficient to displace the overwhelming, consistent, and corroborated testimony of the multiple victims and supporting witnesses. The prosecution proved its case beyond reasonable doubt. 24.In conclusion, the ingredients of robbery with violence contrary to section 296(2) of the Penal Code were fully established in respect of the several women victims. The Appellant employed dangerous weapons, used and threatened personal violence, including strangulation and beatings, and stole mobile phones and money in the course of these attacks. The conviction on the three counts of robbery with violence was safe and is upheld. 25.In Counts IV, V, and VI, the appellant was charged with the offence of rape, and in Count VII, the offence of attempted rape.Section 3(1) of the Sexual Offences Act, 2006 provides:“A person commits the offence of rape if he or she intentionally and unlawfully penetrates the genital organs of another person with his or her genital organs without the consent of that person.” 26.Lack of consent is an essential element. As held in Republic v Oyier [1985] KLR 353, consent obtained through fear of death or duress does not constitute valid consent, and it is no defence that the woman yielded through fear. Section 124 of the Sexual Offences Act further provides that no corroboration of the victim’s evidence shall be necessary for a conviction in sexual offences, and the court may convict on the single evidence of the complainant if satisfied that such evidence is truthful and reliable. 27.PW1 V.W gave a clear, detailed, and consistent account that the Appellant lured her with a promise of employment, led her into the Lenana forest, produced a knife, strangled her, and threatened to call others to rape and kill her. He then unlawfully and intentionally penetrated her vagina with his penis. She begged him not to harm her owing to her young children, but submitted under duress. She reported the matter promptly and was examined at Coptic Hospital. PW10 confirmed medical findings consistent with rape, including an old hymen tag, a tear at the 6 o’clock position, whitish creamy discharge, and blood in the vagina. Her testimony on penetration and absence of consent remained unshaken. 28.PW2 S.B testified that the Appellant similarly lured her, took her to a forest thicket, held her neck, threatened to kill her, overpowered her, and unlawfully penetrated her vagina with his penis before snatching her phone. She reported to Mutuini Police Station and was treated at Nairobi Women's Hospital. PW8, the Clinical Officer, examined her. 29.PW3 I.M stated that the Appellant led her into the forest, grabbed her, produced a knife, panga, rope, and poisonous substance, threatened to kill or hang her, and then unlawfully and intentionally penetrated her vagina with his penis. PW8 recorded blood-stained clothes, bruising, swelling, bleeding from the vagina, and the presence of numerous spermatozoa on a high vaginal swab, providing strong corroboration of recent penetration. 30.In each of the above cases, the prosecution proved intentional unlawful penetration without consent through the credible testimony of the complainants, supported by medical evidence. The violence, threats, and isolation negated any possibility of consent. 31.Regarding the offence of attempted rape, section 4 of the Sexual Offences Act 2006 provides:“Any person who attempts to unlawfully and intentionally commit an act which causes penetration with his or her genital organs is guilty of the offence of attempted rape and is liable upon conviction to imprisonment for a term which shall not be less than five years but which may be enhanced to imprisonment for life.” 32.PW4 Jacinta Mwihaki testified that the Appellant lured her with a job offer, strangled her from behind in the forest, pushed her to the ground, tried to remove her bikini and panties, and attempted to penetrate her vagina with his penis. She resisted vigorously by holding his penis tightly until he gave up. PW8 treated her as a case of attempted rape. This conduct demonstrated a clear intention to rape, coupled with overt acts towards penetration, interrupted only by her physical resistance. 33.All complainants had sufficient opportunity to observe the Appellant during the incident process and positively identified him at identification parades conducted by PW9 CIP Kennedy Gitau. PW11 confirmed the consistent modus operandi. The Appellant’s unsworn defence of alibi and bare denial did not raise reasonable doubt against the overwhelming prosecution evidence. 34.The evidence established beyond a reasonable doubt that the Appellant committed the offence of rape on PW1, PW2, and PW3, contrary to section 3(1) of the Sexual Offences Act, 2006, and attempted rape on PW4, contrary to section 4 of the said Act. The convictions in Counts IV, V, VI, and VII were proper and are upheld. 35.The Appellant was sentenced to death on Counts I, II, and III relating to the offences of robbery with violence, and to life imprisonment on Counts IV, V, VI, and VII relating to the offences of rape and attempted rape. In imposing sentence, the trial court considered the pre-sentence report, the Appellant’s mitigation, and the fact that he was a first offender. 36.The court further considered the aggravating circumstances of the case, including the calculated manner in which the offences were committed, the use of violence and dangerous weapons, and the repeated targeting of vulnerable women under the guise of offering employment. The offences were grave, traumatic, and demonstrated a clear pattern of predatory conduct. The sentences imposed were lawful, proportionate, and commensurate with the seriousness of the offences. Accordingly, I find no basis upon which to interfere with either the conviction or sentence imposed by the trial court. 37.In the premises, the appeal is found to be lacking in merit and is dismissed in its entirety.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 20TH DAY OF MAY 2026D. KAVEDZAJUDGEIn the presence of:Appellant PresentMutuma for the RespondentToni Court Assistant.