David Odhiambo & another v Republic [2005] KECA 315 (KLR)

Section 296(2) prescribes the death sentence where the offender is armed with a dangerous or offensive weapon, but being armed is only one of the alternative ingredients - alongside company and violence - distinguishing the offence from simple robbery under section 295. The prosecution must elect and plead the ingredient it relies on. Because a knife, stone, gun or wheel spanner is not inherently dangerous, the test is the use or purpose for which the possessor intends it, consistent with the definition of an offensive weapon in section 89(4). A charge alleging only a 'knife' omits a vital ingredient and is defective.

The complainant gave unshaken evidence of identification under street lights, described the role each appellant played, was examined the same night with injuries consistent with a sexual assault, and picked out each appellant at identification parades on 20 February 2002 and 18 March 2003. The trial magistrate warned herself of the dangers of single-witness evidence, and the High Court confirmed her findings on first appeal. On a second appeal the Court of Appeal does not disturb such concurrent findings absent a demonstrated reason, and the complaints about the parades and the uncalled husband were unfounded.

No objection was taken at trial to the omission of the word 'unlawful' from the rape particulars, and no relief turned on the point. The Court nevertheless used the case to give practice guidance: the statutory definition in section 139 must be reproduced in the particulars, and the same applies to sections 143, 144 and 145(1) and (2), compliance being expected 'in future' from prosecutors and trial magistrates. Because the outcome on both counts did not rest on this pronouncement, it is recorded as persuasive guidance rather than the ratio.

Section 140 of the Penal Code prescribes the punishment for rape. The Court treated the hard-labour component as mandatory rather than discretionary - the omission by both courts below was an error, even though the fourteen-year terms were otherwise lawful and 'eminently deserved'. In exercising its second-appeal powers the Court corrected the omission by directing that the sentences be served with hard labour, while otherwise dismissing the appeal on that count. The holding binds sentencing courts to attach the hard-labour requirement when imposing sentences under section 140.