Mwambili v Republic

5. In addition to the charges aforesaid, the appellant was charged with the second count of attempted rape contrary to section 4 of the Sexual Offences Act, 2006. The particulars thereof were that, at around 4.20am on 17th March 2017 at Voi area within Taita Taveta County, the appellant intentionally and unlawfully attempted to cause his male genital organ to penetrate the female genital organ of JNM by force. 6. The appellant denied all the charges, and the case proceeded to trial with the prosecution calling ve (5) witnesses. The appellant gave a sworn statement and called no witness in his defence. 7. The complainant, JNM (PW1), then a second year Bachelor of Commerce student at [Particulars Withheld] University, told the court that, on 17th March 2017, she was returning to college from her home in Nairobi; that she arrived in Voi Town at around 4.15 a.m and alighted at the Caltex stage along the Nairobi-Mombasa highway to look for local means to ferry her to college; and that as soon as she alighted, a group of eager and enthusiastic Boda Boda riders rushed to her and oered to ferry her to her destination; and that a majority of the riders insisted on the sum of Kshs. 200 as the lowest fare to her destination. However, the appellant oered to take Kshs. 150 which PW1 accepted; that she was carrying three bags – a red and black bag – which she handed over to the appellant to carry as she remained with the other two bags; that the appellant rode to the adjacent Bakri Petrol Station for refueling, after which they commenced the journey to her college. 8. It was PW1’s testimony that they initially took the main road but, mid-way, the appellant proposed that they branch into a shortcut, arguing that the main road was still under construction and therefore impassable; that PW1 was uneasy with the proposal, but that they nevertheless took the short cut; that the appellant rode for about 50 metres and then stopped abruptly, which PW1 thought was due to a mechanical problem; that, immediately after the unexpected stop, the appellant started accusing university students of trapping boda boda riders to their death; that PW1 sensed danger, and quickly disembarked from the motor cycle and started running towards the main road; that the appellant pursued and caught up with her, grabbed her by the right hand and instantly covered her mouth with one hand as she started screaming; that the appellant pulled her towards the motor cycle and tripped her to the ground; that she fell on her back facing upwards; that the appellant sat on her thighs and held both her hands; that the appellant rmly pinned her to the ground using his knees, and threatened to stab her with a knife; and that she pleaded for mercy, saying that she was a mere rst-year student and had nothing to do with the murder of Boda Boda riders. 9. PW1 further testied that the appellant demanded for her identication card, and she complied; that she oered him her material possessions in exchange for her life and freedom; and that the appellant responded the he was not interested in her money, but changed his mind and sought to know how much money she had on her. PW1 responded that she had Kshs. 1,300, which the appellant ascertained by using her phone torch and took it; and that he placed the money and the phone on the ground and led her towards the path where the motorcycle was. She further testied that, in a bid to escape, she hit him on his private parts whereupon he rained blows on her face, started undressing her, ripped o her blouse and attempted to rape her; that, as he adjusted his trousers, she escaped into a bush after which the appellant started his motorcycle and rode o. 10. According to PW1, she made it to her college hostel, informed the security ocer, one Mr. Matani, who in turn alerted the police. She testied that the police visited the crime scene and retrieved one of her bags before she was referred to Moi County Hospital for medical attention. 11. PW1 further testied that, on 18th March 2017, she was summoned to Voi Police Station to attend an Identication Parade where she managed to pick out the appellant from the line-up of ten individuals. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1722/eng@2026-09-25 2

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PW1 concluded her lengthy testimony by informing the court that, on 19th March 2017, in the presence of the appellant, she accompanied the police to the appellant’s house at Mbololo from where she retrieved her Tecno charger and earphones. 12. On cross-examination, PW1 insisted that she was able to positively identify the appellant as the assailant because: he was not wearing a helmet on the material day; the stage where the appellant picked her was well lit; the lights at the petrol station where the appellant fuelled before the botched ride were on; the appellant used her phone’s torch and ash light to count her money; and the area where the twenty to twenty ve minute ordeal happened was well lit by moonlight. 13. Peter Kyalo (PW2) attached to the Forensic Crime Scene Department of the Directorate of Criminal Investigations testied that, on 17th March 2017 while in the company of Chief Inspector Muniko of DCIO Voi and PC Mukuta from Voi Police Station Crime Section, he documented the crime scene by taking photographs, which he produced to evidence. PW2 further testied that, on 18th March 2017, he conducted an identication parade where the appellant was positively identied by PW1. He produced the Identication Report into evidence. 14. Dr. Shem Jeremiah Okoth (PW3) testied and attempted to produce into evidence PW1’s P3 form prepared by William Sigei Birir, a Clinical Ocer and former colleague at Moi County Referral Hospital, which the appellant objected to, insisting that the maker of the document should appear in person and testify. The trial court allowed his objection, stood down PW3 and directed the prosecution to call the Clinical Ocer who prepared the P3 form. 15. William Sigei Birir (PW4), a Clinical Ocer based at Mwatate Sub-County Hospital, testied that on 17th March 2017, PW1 was presented at Moi County Referral Hospital for medical examination alleging to have suered an attempted rape; that, upon physical examination, PW1 was found to be of fair general condition, had no injuries on the neck, head, abdomen and thorax, but had injuries on her upper limbs. PW4 proceeded to prepare her P3 form, which he produced into evidence. 16. The investigating ocer, PC Linet Bukuta (PW5), testied that she was attached to Voi Police Station; that, on 17th March 2017, she received information on PW1’s ordeal; that, during the course of her investigation, she interrogated PW1, visited the scene of crime, documented the crime scene with the assistance of PW2, and eventually arrested the appellant with the assistance and cooperation of his fellow Boda Boda riders. PW5 further testied that, on 18th March 2017, immediately after the successful identication parade conducted by PW2, they escorted the appellant to his home, conducted a search and retrieved PW1’s techno charger and earphones; that, when the appellant was booked into the police cells, he surrendered a Neon Phone in his possession. PW5 concluded her testimony by producing PW1’s soiled and torn clothing items and all the recovered items into evidence. 17. Having considered the prosecution case, the trial court found that the appellant had a case to answer and put him on his defence. 18. In his defence, the appellant denied committing the oence and stated that, on 17th March 2017 at about 11:30 pm, he alighted at Caltex area from a vehicle he had boarded in Mombasa; that, at the time, it was dicult to get a vehicle as a result of which he decided to request a Boda Boda rider to take him home; that, in the process, police ocers arrived and arrested the rider for failing to have a driving licence; that he was also arrested despite his explanation that he had just arrived from Mombasa; and that he was later placed in a police cell. 19. The appellant further testied that, the following morning, he was lined up in an identication parade; that the person who came to identify them had seen him at the police station; and that, thereafter, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1722/eng@2026-09-25 3

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police ocers took him to his home, conducted a search, which yielded nothing, but that he was nevertheless taken back to the police station and charged in court the very next day. 20. In his judgment delivered on 5th March 2019, the trial Magistrate (Hon. M. Onkobo, SRM) concluded that PW1 had indeed suered actual violence at the time of the robbery; that this ingredient of the oence of robbery with violence was suciently proved; that the appellant raised his alibi defence as an afterthought; that the “circumstances obtaining at the time of her ordeal [PW1’s] were clear and ideal… to aid an accurate, proper and mistake free identication”; that, in addition to the Neon phone that he surrendered at the police station during his booking, the appellant was also found in possession of PW1’s items at his home; and that the oence of attempted rape did not crystallise. Consequently, the court acquitted the appellant on his second count, but found him guilty of robbery with violence and sentenced to 30 years imprisonment. 21. Aggrieved by the conviction and sentence, the appellant led an appeal to the High Court of Kenya at Voi in Criminal Appeal No. 14 of 2019. However, on 8th March 2021, during his oral highlights of his written submissions of even date, the appellant abandoned his appeal on conviction, but maintained his appeal on sentence. The appellant submitted that the 30 years’ sentence was too punitive; that he was reformed; that he was married with two children, and had elderly parents and young siblings who depended on him; and that he did not use any dangerous weapons in the robbery. 22. On his part, learned prosecution counsel, Ms. Mukangu, submitted that the appellant was brutal to PW1, and that the term of imprisonment meted on him was adequate. 23. In its judgment delivered on 13th May 2021, the High Court (E. K. O. Ogola, J.) stated that: “ The appellant deserves a most deterrence punishment. This Court could have jailed the Appellant to more that 30 years. However, I will not do that … neither will this Court interfere with the sentence of 30 years imposed on the Appellant.” 24. Accordingly, the learned Judge dismissed the appellant’s appeal on the sentence meted by the trial court. 25. Further aggrieved, the appellant moved to this Court on 2nd appeal. The nine grounds advanced by the appellant in person were that the 1st appellate court erred in law by: failing to nd that the investigation was “shoddy”; failing to appreciate that the evidence relied on was circumstantial and could not sustain a safe conviction; failing to nd that the prosecution’s evidence was contradictory and inconsistent; failing to consider his defence; and by imposing a harsh and excessive sentence, since it failed to consider his mitigation and the facts and circumstances unique to his case. 26. In support of the appeal, learned counsel for the appellant, Mr. Samson Wagoro, led written submissions dated 8th October 2025. Counsel submitted that “despite some of the home drawn grounds of appeal as led by the appellant touch on conviction, we appreciate the fact that this Honourable Court can only entertain the appeal on the sentence and that is what we wish to address you on”. Learned counsel cited the cases of John Ambia Kharisya v Republic [2020] KECA 891 (KLR); and Peters v Sunday Post [1958]EA 424, submitting that the sentence meted was “disproportionate, considering the mitigation he [appellant] presented and the circumstances surrounding the oence.” He urged us to set aside the sentence and set him at liberty. 27. In his response, learned Senior Principal Prosecution Counsel, Mr. Birir Kimaiyo, led written submissions and a list of three authorities dated 25th November 2025. With regard to sentence, learned counsel cited the case of MGK v Republic [2020] eKLR, submitting that severity of sentence is a matter https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1722/eng@2026-09-25 4

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of fact and not of law, and that it goes beyond the remit of this Court on 2nd appeal. He urged us to dismiss the appeal. 28. Section 361(1) (a) of the Criminal Procedure Code provides that: A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High court in its appellate jurisdiction on a matter of law and the Court of Appeal shall not hear an appeal under this section- 29. i. on a matter of fact, and severity of sentence is a matter of fact; or ii. against sentence, except where a sentence has been enhanced by the High court, unless the subordinate court had no power under section 7 to pass the sentence. Our mandate on a second appeal as the one before us is conned to consideration of matters of law by dint of section 361 of the Criminal Procedure Code. In Karingo vs. Republic [1982] KLR 213, the Court stated: “ A second appeal must be conned to points of law and this Court will not interfere with concurrent ndings of fact arrived at in the two courts below unless based on no evidence.” 30. The jurisdiction of this Court on a second appeal, as is the case here, has been the subject of judicial pronouncement in various cases, such as Stephen M'Irungi& Another v Republic [1982-88] 1 KAR p.360 where it was held: “ Where a right of appeal is conned to questions of law only, an appellate court has loyalty to accept the ndings of fact of the lower court(s) and resist the temptation to treat ndings of fact as holdings of law or mixed nding of fact and law, and, it should not interfere with the decisions of the trial or rst appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law." 31. More authoritatively, the Supreme Court in Republic vs. Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR), whilst restating the powers of the Court of Appeal in sentencing, stated: “ 48. Before further delving into the question of the constitutionality or otherwise of the sentence, we must take cognizance of provisions of section 361(1) of the Criminal Procedure Code which, in cases of appeals from subordinate courts, explicitly bars the Court of Appeal from hearing issues relating to matters of fact. This section also elaborates that the severity of sentence is a matter of fact and not of law and that Court of Appeal is barred from determining questions relating to sentences meted out, except where such sentence has been enhanced by the High Court.” (see also MGK v Republic [2020] eKLR) 32. It is noteworthy that the appellant elected to abandon his appeal on conviction and opted to only proceed with his appeal on sentence, which is essentially a matter of fact. In the circumstances, the singular ground of appeal before us is whether the sentence imposed was unlawful or harsh and https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1722/eng@2026-09-25 5

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excessive. We nd nothing on record to suggest that the trial court had no power to pass the sentence complained of, or that the sentence was unlawful. 33. It is also trite that sentencing is purely the exercise of discretion of the trial court. This Court pronounced itself on its limited power to interfere with the discretion of the trial court in sentencing in the case of Francis Nkunja Tharamba vs. Republic (2012) KECA 29 (KLR) where the Court stated: “ …sentencing is a discretionary act of the trial court even though the limits such as the maximum sentences and in some cases the minimum sentences are prescribed by law, nonetheless, as to the exact sentence to be pronounced upon a convicted person, the trial court has in most criminal cases, the discretion to decide. That being the case, in law, the appellate court should not intervene in such an exercise of discretion by an inferior court unless, it is demonstrated to it that the trial court has not exercised that discretion properly in that it has failed to consider matters it should have considered or that it has considered matters it should not have considered or that looking at the entire decision, it is plainly wrong. These are the situations in law where the appellate court can intervene in the trial court’s exercise of discretionary power such as that of sentencing. The next principle that the appellate court should adhere to when considering an appeal on sentence is that when the sentence is lawful, the appellate court should not interfere.” [Emphasis added] 34. In view of the foregoing, this Court is not mandated to pronounce itself on 2nd appeal on the severity of the sentence meted on the appellant and, consequently, this ground of appeal fails. 35. Having carefully considered the record of appeal, the impugned judgments of the two courts below, the rival submissions of the appellant and of the State Counsel, the cited authorities and the law, we can only conclude that the sentence meted on the appellant was lawful and by no means harsh or unjust. Consequently, we hereby order and direct that: a. The appellant’s appeal be and is hereby dismissed in its entirety; and b. The judgment of the High Court of Kenya at Voi (E. K. O. Ogola J.) dated 13th May 2021 in Criminal Appeal No. 14 of 2019 be and is hereby upheld. DATED AND DELIVERED AT MOMBASA THIS 25TH DAY OF SEPTEMBER, 2026. A. K. MURGOR .................. JUDGE OF APPEAL DR. K. I. LAIBUTA CArb, FCIArb. .................. JUDGE OF APPEAL G. W. NGENYE-MACHARIA .................. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1722/eng@2026-09-25 6

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