Timothy Kiptanui Kitai Alias Cheparkach & 1 other v Republic

B. Evidence B.1 Respondent’s Evidence 5. The Respondent’s first witness PW1 testified that he knew both the Appellants herein as the 1st Appellant was known to him as Cheparakachi while the 2nd Appellant as Ngweyo. He recalled that on 12th January 2018, at 10.00 p.m. he heard noises emanating from the home of one J and the noise confirmed to him that a gunshot had been fired in the home of one A, father of J. He told the Court that as a neigbour he woke up and so did other neighbours and while armed with matchets they proceeded with the deceased ERK towards the source of the noise. They then heard the voice of the 1st Appellant herein saying that thieves had taken the route towards Uganda. As the deceased lit the torch he also spotted the 2nd Appellant who was screaming that the thieves had taken the Ruanda route. He told the Court that he noticed that the 1st Appellant herein was armed with a gun while the 2nd Appellant had a panga. The 1st Appellant shot the deceased on the right leg and the 2nd Appellant approached the deceased with a panga, and cut him on the back of his neck. He told the Court that he fled the scene and only returned to the home of Aat around midnight where he found him dead. It was his testimony that E did not survive the attack. He maintained that he had recognized the voices of the Appellants herein as they were his neighbours and that he also knows the father to the 1st Appellant. He told the Court that the Appellants were about 6-10 meters away from them when they were attacking the victim. 6. on cross-examination by the 1st Appellant, PW1 told the Court that nothing was stolen from him and that the scene of crime was at the home of J. He maintained that he witnessed the attack from a distance of 10 meters away and that he recognized the Appellants voices and that the deceased, R, had illuminated the assailants with his torch. 7. On cross-examination by the 2nd Appellant, PW1 told the Court that the 2nd Appellant’s home was about 2 kms from his and that it was the 2nd Appellant who cut the deceased. He maintained that he was close enough to see the 2nd Appellant as he was about 10 meters from him and that ER had directed his torch light towards the Appellants. He maintained that as the villagers were screaming for help, the 2nd Appellant was shouting and misdirecting the villagers. This witness testified that he knew the 2nd Appellant very well as he was a boda boda operator who had ferried him on many occasions. 8. On re-examination, PW1 told the Court that he did not light up his torch as he was apprehensive that he too could have been shot in a similar manner to R. He stated that Korgotuny and Cherwadoyi villages border each other. Further that as he took flight, he had turned momentarily, and saw the 2nd Appellant cutting up the deceased as the latter lamented “oh I am dying” in Sabaot language. That the villagers were urging each other to pursue the thieves in the direction that the Appellants were misleading them to. 9. PW2 recalled that on 12th January 2018, at around 10.00 p.m. while sleeping she heard 3 people calling to her husband urging him to open his door complaining of the harsh cold. She told the Court that they hit the window of their bedroom which easily gave way and torch light was directed towards the bedroom. The next thing that happened was that their door was broken down and the intruders gained ingress into the house. It was her testimony that the intruders had torches, a rifle, pangas and rungus and 2 peoples entered the house. According to her the first person was the 2nd Appellant herein and she recognized his voice and face and he was armed with a panga. The 2nd Appellant instructed her husband who was now standing by the bed to stretch out his hand, the 2nd Appellant cut the mosquito net and used it to tie up her husband’s hands together and he then directed him to lie on the floor. The 2nd Appellant ordered him to produce the money that he had in his possession and he then started to hit https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18318/eng@2025-11-14 2

page 2 of 16

her husband with a stick on his ribs. She told the Court that the 2nd Appellant then hit her husband on the back and his head, but they did not give out any money. She then told the attackers that they had expended all their money in paying their children’s school fees. Further that as she picked her purse the 2nd Appellant grabbed it and searched through it. It was her testimony that the 2nd Appellant only found Kshs. 500/= which he took and it was at this point that the 1st Appellant walked in and then left. She observed that the 1st Appellant was very restless as he would walk into the bedroom then walk out. She told the Court that she knew the 1st Appellant very well as he ran a shop at Maiti and he was also a farmer and that she has known him for 3 years. The man at the window alerted the 2nd Appellant of the incoming villagers and the 2nd Appellant ransacked her husband’s trousers and found Kshs. 3,000/ =. The 2nd Appellant quickly located an axe from under their bed and hit her husband with the handle on the legs and his hands. She told the Court that the 2nd Appellant left their house and was conversing outside with the 3rd person before the arrival of the villagers and that was when she heard a gunshot and the screaming stopped. She told the Court that the invaders shot thrice prior to heading towards her father-in-law’s house, AC. 10. On cross-examination by the 1st Appellant, she told the Court that they were attacked at 10.00 p.m. and that she recognized the 1st Appellant’s voice and saw his face when he entered the house with the help of the 3rd invader’s torch from their bedroom window. She told the Court that the 1st Appellant is from their neighborhood. She confirmed that A was killed but she did not know who killed him. 11. On cross-examination by the 2nd Appellant, she told the Court that she knew the 2nd Appellant very well as he lived about 25 km from her and that he was the one who invaded her house at 10.00 p.m. She told the Court that she was able to identify the 2nd Appellant when he entered their house with the aid of the torchlight coming from the window where the 3rd invader stood. 12. On re-examination, she told the Court that the 1st Appellant is a shopkeeper at Corner Maiti and that she was able to see the Appellants with the aid of the torchlight from the bedroom window, which was shining into the bedroom. 13. PW3 testified that she was woken up by the barking of the dogs and sound of footsteps on 13th January 2018 at 2.00 a.m. She saw lights outside and heard people speaking and knocking at her door demanding that he opens it. On her refusal the door, they started to make a hole on her wall telling her that they will make use of the hole if she refuses to open the door. She opened the door and one man entered the house and hit her on the neck with a panga and then 2 other men followed behind him. She told the Court that she saw the man who hit her with the aid of the D-light lamp and it was the 2nd Appellant herein. The 2nd Appellant demanded that she gives them money and they proceeded to search her mattress for the same. It was her testimony that she recognized the 2nd Appellant vide his face and voice as she knew him very well having been her neighbor. She told the Court that when they search her bedroom and did not find any money the 2nd Appellant took her outside, took her leather jacket, knocked her down, removed her pants and raped her and once he was done he instructed her to head back into her house. She produced in Court her treatment notes as PEXH3 and insisted that it was the 2nd Appellant herein who raped her. 14. On cross-examination by the 1st Appellant, she told the Court that the incident occurred at night at 2.00 a.m. and that she was able to identify both the Appellants. 15. On cross-examination by the 2nd Appellant, she told the Court that she identified the 2nd Appellant as one of the attackers and that the D-light lamp and the torchlight aided her in identifying him. She insisted that she recognized the 2nd Appellant’s voice and that it was the 2nd Appellant who raped. She https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18318/eng@2025-11-14 3

page 3 of 16

told the Court that outside there was some moonlight, but she had already seen the Appellants while they were inside the house and that even while outside she saw them. 16. On re-examination, she told the Court that it was the 2nd Appellant who raped her and that the Appellants had not covered their faces. She reiterated that she recognized the 2nd Appellant’s voice and face. 17. PW4 testified that on 12th January 2018 at around 10.00 p.m. while asleep in his house with his wife and children, he heard a voice demanding that he opened his door as the police were outside. He told the Court that he did not respond and then he heard a bang on his door as it was being broken down, and that was when he responded and said that he was inside the house. His window was also broken and a D light lamp shone into his bedroom. The 2nd Appellant entered his sitting room and after the bedroom door gave way from persistent banging, the 2nd Appellant accessed his bedroom. He was armed with a panga and he had a torch. The light in the bedroom was still on and he was able to see the 2nd Appellant well. The 2nd Appellant ordered him to get up and he noticed that he was also carrying a stick. The 2nd Appellant later used the string that had fixed the mosquito net in place to tie his hands together at his back and forced him to lie on the ground. He had ordered him to hand over all his money but he told the 2nd Appellant that he did not have any money with him as he had already paid his children’s school fees. The 2nd Appellant decided to conduct a search in his house and was able to take out Kshs. 3,000/ = that was in his trouser that was hanging on the chair by the bedroom. The 2nd Appellant began to hit him with a panga on the back and the head wherefore his wife declared that she had more money in her purse. She gave them the purse that had the Kshs. 500/= and the 2nd Appellant picked up the money from the purse. 18. PW4 testified that the 1st Appellant, Cheparakach, then came into the bedroom while the D-light lamp was still on and he had a gun and a stick with him. He started to search their mattress but did not find anything and he used the handle of an axe to assault him on the legs and he left the 2nd Appellant in the house with them. He told the Court that it was at that point that the neighbours started screaming and from outside, the 1st Appellant shouted at the screaming villagers and shot in the air. He told the Court that the 1st Appellant shot in the air 4 times and the man with the D-light lamp alerted the 2nd Appellant that the situation outside the house was getting out of hand and that they should exit the premises. That the 2nd Appellant then quickly threw away PW4’s wife’s purse and told his colleagues that they should drive away the cows. That upon the exit of the assailants he requested his wife to untie his hands. 19. PW4 told the Court that he then crawled outside and hid in nearby bushes and he heard a neighbor talk to his wife and he returned to the house. He told the Court that the 2nd Appellant also took his cellphone Itel valued at Kshs. 1,200/= and that he was informed that his father, AC Chebonya, was killed. He rushed to his father’s house and found him dead as he had been shot three times. He told the Court that he knew both the Appellants herein very well as the 2nd Appellant was a local boda boda operator and the 1st Appellant had a hotel shop and a farm in the area. He told the Court that he positively recognized the Appellants herein. 20. On cross-examination by the 1st Appellant, PW4 told the Court that he was attacked at around 10.00 p.m. and that he did not know how many the assailants were in number as he only saw 3 people. He maintained that he identified that Appellants with the aid of the D-light lamp shining from his bedroom window and that both of the Appellants also had lights with them. He stated that they were wearing rain coats and marvins on their heads and he was able to also recognize their voices as they spoke a lot during the incident. He told the Court that he saw the 1st Appellant when he entered the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18318/eng@2025-11-14 4

page 4 of 16

room and also as he assaulted him and that he recognized him as he is also a neighbour and that he knows he was the one who shot his father as he was armed with a gun. 21. On cross-examination by the 2nd Appellant, he told the Court that he was attacked on the night of 12th to 13th of January 2018 and that the robbers had lights with them so their identification was through the light coming from the window. He told the Court that the 2nd Appellant wore a maroon jacket and marvin that covered his head, but not his face. He told the Court that the 2nd Appellant’s residence is nearby. 22. On re-examination, he reiterated that he saw the 1st Appellant enter the room and he was about a meter or less away from him. He told the Court that he saw the 1st Appellant when he raised his head after he hit him. 23. PW5 testified that on 13th January 2018, at around 2.30 am while sleeping he heard noises from outside his house and then saw light in the house penetrating from the space between the wall and the roof. He told the Court that his dogs were also barking and he heard knocks on the neighbor’s door and the door was banged opened. He told the Court that his house was next to that of his neighbors and then he heard the intruders state that they were police officers. Shortly after, the door to his house was knocked and his neighbors told the intruders that he was in Chwele and his wife did not open the door. His wife asked the people knocking if they were policemen and they said that they were policemen who wanted to spray chemicals. His door was broken down and the intruders then kicked the bedroom door which was a metal grill and his wife told the intruders that they will not open the door for them. The intruders failed to breakdown the metal door and he stood next to it with a panga. The intruders eventually made a hole in the wall and he then instructed his wife to open their bedroom door while he hid under the bed. He then saw two people enter his bedroom with torch lights and they demanded for money. According to him, one of them attacked his wife as the other who came in headed for where they stored their farm chemicals. He told the Court that the other pointed the torch light under the bed where he had been hidding and he spotted him and loudly declared that PW5 was hiding under the bed. One of the men led his wife outside as the remaining two searched for money in his jacket then the 2 men left. After 20-30 minutes, his wife alerted him that the intruders had left, but she had been raped. 24. It was the evidence of PW5 that he identified the voice of one of the men who demanded money from him as that of the 2nd Appellant herein and told the Court that he had known him for a long time as a neighbor and for a period of 5 years. He also told the Court that he identified the 1st Appellant as he demanded that they open the door, as he was a neighbor and had known him for more than 5 years. 25. On cross-examination by the 1st Appellant, he told the Court that they were attacked at 2.30 a.m. and the attackers were claiming to be police officers. He was categorical that he knew the 1st Appellant and where he resides and he had also leased a butchery to him and they would interact for long periods. He also told the Court that the 1st Appellant had also leased a shamba to him at on me point. 26. On cross-examination by the 2nd Appellant, he told the Court that the attack occurred at 2.30 a.m. and they heard voices demanding that the door be opened and the individuals claimed to be policemen. He told the Court that there was no electricity and the intruders spent 30-40 minutes in his house and they were talking in Swahili. He told the Court that his wife opened the door for the intruders as he hid under the bed and that the 2nd Appellant was a boda boda operate as him and that he has once lent him his motorbike to ride the same. 27. On re-examination, he told the Court that his wife was raped by the 2nd Appellant and that he identified the attackers by their voices. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18318/eng@2025-11-14 5

page 5 of 16

28. PW6, Dr. Ombogi Heron, testified that he was based at Bungoma County Referral Hospital and he was before the Court to produce the postmortem report for one AC dated 26th January 2018. According to him, the body had 4 penetrating gunshot wounds on the lower limbs and on internal examination, there was a positive finding on the rapture of the nervous system bundle artery supplying fiber and tissue. He told the Court that the cause of death was sever hemorrhage secondary to penetrating gunshot wounds. He produced in Court the postmortem report signed on 26th January 2018 as PEXH7. 29. He also availed before the Court the postmortem report of one ER dated 26th January 2018. According to him, on external examination of the body, he noted presence of deep cut wounds on the posterior aspect of the neck, fracture of the cervical spine, a deep cut wound on the left scapula and 2 cut wound on the lower limbs. On internal examination, he observed that the neck vessel had been depressed leading to upper airways obstructions. His prognosis was that the cause of death was sever injury with pulmonary arrest secondary to assault using sharp and blunt objects. He produced in Court the postmortem report signed on 26th January 2018 as PEXH8. 30. On cross-examination by the 1st Appellant, he told the Court that he performed the postmortem on 26th January 2018, and that the does not know who caused the injuries. 31. On cross-examination by the 2nd Appellant, he told the Court that he has an experience of 7 years and that he did not ask who the culprits were. 32. PW7, Kipsang Masai, testified that he was a clinical officer based at Kimili Sub-County Hospital and he was before the Court to avail the treatment notes and P3 of the patient LC who was treated on 13th January 2018. It was his evidence that the patient was presented at the facility with a history of rape by two persons known to her on the night of 12th January 2018. On general examination, he noted that the patient complained of slight abdominal pain on the lower pelvic region. On genitalia examination, he observed that there was blood on the outer vaginal oriface laboratory examination, the patient’s urinalysis showed presence of blood, red blood cells and on high vaginal swab there was presence of epithelial cells. He told the Court that the presence of blood cells, indicated injuries and epithelial cells showed that there was sexual activity. It was his testimony that the patient was given PEP, antibiotics and painkillers. He produced in Court LC’s treatment notes, P3 form filled on 6th August 2018 and outpatient treatment card as PEXH3, PEXH4 and PEXH9 respectively. He confirmed that the P3 form was filled 7 months after her treatment and he used the treatment notes to fill the same. 33. On cross-examination by the 2nd Appellant, he told the Court that he was not related to the Complainant and that she was presented to the facility on 13th January 2018, but the P3 form was filled on 6th August 2018. 34. On re-examination, he told the Court that the Complainant complained that she bled from the rape and that presence of spermatozoa in the victim is ordinarily expected but if the perpetrator did not ejaculate or did wear a condom there will be no spermatozoa. 35. PW8, No. 21xxx John Kimathi Mutunga SP, testified that he was the Kericho East Sub-County Criminal Investigations Officer ( CCIO) and that on 18th May 2018 at 8.50 am he received information from the OCS Kericho that a man from Mt. Elgon had surrendered to him and the OCS had requested that he attends to him. He told the OCS to place the man in custody, book him in the OB and then escort him to his office. That when the suspect was taken to his office, he identified himself to him as one Cleophas Kitai, 2nd Appellant herein, from Mt. Elgon and that he was one of the members of SDLF, and that he was apprehensive about his safety as he was been sought by security agents. This https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18318/eng@2025-11-14 6

page 6 of 16

witness told the Court that the 2nd Appellant had told him that he had initially fled to Uganda due to security reasons and had recently returned to Kenya to surrender himself. That after consultations with his bosses, he escorted the 2nd Appellant to Nairobi where he handed him over to the flying squad for further investigations. 36. On cross-examination by the 2nd Appellant, he told the Court that he received the 2nd Appellant at around 8.50 am and that the 2nd Appellant had been craving for his safety. He told the Court that the 2nd Appellant informed him that police officers from Mt. Elgon were looking for him and that he feared that they could kill him. He told the Court the he was not aware that the 2nd Appellant was a wanted person. 37. PW9, John Welemba, testified that he was a clinical officer based at Webuye Referral Hospital but prior this his new posting he been at Chwele Sub-County Hospital. He testified that he had examined one JC on 13th January 2018 who had been presented with a history of assault with a panga. He observed that he bone injuries on the occipital, left shoulder and on the left thigh, and was bleeding from the back of his head. He noted that the Complainant had a 4 cm cut on his head and there was a swelling on the left of his shoulder and a swelling on the back of his thigh. The Complainant was given medication and his wounds were sutured and this witness wanted to produce the complainant’s treatment notes as an exhibit in Court. 38. The 1st Appellant objected to the production of JC treatment card and P3 form stating that he was not served with the same. The Respondent noted that they were not aware that he was never supplied with the same and the trial Court stood down the witness to allow the state time to serve the 1st Appellant with the copies of the treatment notes and P3 form. 39. PW11, No. 53xxx Sgt. Maurice Mulwa, testified that he was stationed at Chepkube Police Station but prior to that he had been at Kipsigon Police Station. He testified that on 13th January 2018 the OCS briefed him about a report of shooting on the night of 12th January 2018. That while in the company of his colleagues they proceeded to the scene whereat they found a crowd of people who informed them that they had been attacked by a gang armed with guns and rungs, and that the same gang had killed 2 people. One of the persons who had been killed was AC, whose body they had found outside his house with a gunshot wound on the hip. That they proceeded across the river where they found another body of one E Chemonges about 50 meters from his home. They observed that the body bore cut wounds on the back of the neck. That they collected the two bodies and transported them to the mortuary. Before leaving the scene, he had established that there were some villagers who had been injured and raped. 40. On cross-examination by the 1st Appellant, he told the Court that he visited 2 scenes and that he did not investigate about the perpetrators. 41. On cross-examination by the 2nd Appellant, he told the Court that the incidents occurred from around 10.00 p.m. onwards and they reported to the scene the next day at around 5.00 a.m. He also told the Court that the bodies recovered from the scene were 1-2 kms apart. 42. On re-examination, he told the Court that he never took Lto the hospital. 43. PW12, No. 93 PC Johnso Wanjohi, testified that he was attached to DCI Cheptais and that he was the investigation officer. He recalled on 13th January 2018 at around 5.00 a.m. while in the company of his colleagues they proceeded to Kipsigon area pursuant to a crime report. On arrival they observed that one AC had been killed and his body laid outside his house with a bullet wound on his back. They proceeded to another scene where they found the body of ER which had a cut wound on the back of the neck. That they thereafter proceeded to another scene at Corner Maiti were they found https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18318/eng@2025-11-14 7

page 7 of 16

a lady called LC who alleged that she had been raped. They commenced investigations and recorded witness statements and it was claimed that Timothy Kiptanui Kiati alias Cheparakach, 1st Appellant herein, and his brother Cleophas Ngeiywa Kitai alias Jet Lee, 2nd Appellant herein, were some of the perpetrators. The lady C alleged that the 2nd Appellant herein was the one who raped her and she was issued with a P3 form which was produced in Court as PEXH4 and her treatment notes from Kimilili Sub-County Hospital as PEXH3. He told the Court that one J, son to deceased A, and his wife J claimed to have been attacked by the Appellants herein. The bodies of the deceased persons were taken to Dreamland mortuary and their respective postmortem reports were availed in Court as PEXH7 for AC and PEXH8 for ER. Additionally, he told the Court that Lalleged that on the night of 12th -13th of January 2018 her house was raided and Kshs. 1,500/= was stolen from her and her husband concurred with her. They identified the perpetrators as the Appellants before this Court and noted that they had not covered their faces, and Lcould identify them. That J had given them a similar account as he claimed that his hands were bound together with a rope and that there had been enough light wherefore he identified both the Appellants and confirmed that he was robbed Kshs. 3,000/=, his Itel phone worth Kshs. 1,500/= and his wife J was robbed of Kshs. 500/= That witnesses told them that all the Appellants had rungus, pangas and a gun. That after recording the witnesses’ statements they commenced on a manhunt of the perpetrators. That the Appellants availed themselves at the police station on learning that the police were searching for them. He told the Court that the 1st Appellant presented himself at Eldoret Police station while the 2ND Appellant presented himself at Kericho Police Station. 44. On cross-examination by the 1st Appellant, he told the Court that he was the investigating officer and that he was aware that the home of the 1st Appellant was about 5kms from the scene of crime. He told the Court that J was the Complainant and that the police visited the homes of the victims and that he was able to identify the 1st Appellant. 45. On cross-examination by the 2nd Appellant, he told the Court that the 2nd Appellant was charged with 8 robberies and rape and that this particular robbery occurred on 12th January 2018. He told the Court that the 2nd Appellant was a neighbor to J and they knew each other, and that with the aid of the torches that lit the room J and his wife J were able to see him and the 1st Appellant. He told the Court that he visited the home of Land established that it was the 2nd Appellant who raped her. 46. On re-examination, he told the Court that no fire arms were recovered and it was LC who had been raped. B.2 Appellants’ evidence 47. The Court duly complied with Section 211 of the Criminal Procedure Code. The Appellants having understood the requirements of the legal provision, opted to give a sworn statement and called no witnesses. 48. The 1st Appellant herein, who testified as DW1, denied the charges leveled against him and told the Court that on 11th January 2018, he was at home and the following day he woke up and headed to work where he met people who told him that there was an incident that occurred in the area. He told the Court that he accompanied people to the scene at Korngotuny and they found police officers there and when they were told to step aside he left and went back home. He maintained that he had continued working until 6th March 2018 when he was summoned to a meeting by the Minister of Interior and when suspects were named his name appeared in the list. He told the Court that he surrendered to the police where the OCS told him that he could not process him so he went back home and on 14th May 2018, he surrendered himself to Eldoret Police Station. He maintained that he was innocent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18318/eng@2025-11-14 8

page 8 of 16

49. On cross-examination, he told the Court that he that on 11th and 12th January 2018, he was at home with his wife and children up to 13th January 2018. He maintained that on 12th January 2018, he met with a lot of people whom he was not acquainted to and that he first surrendered to the OCS Kipsigon, but could he not recall the date. He told the Court that his name was mentioned by the CS Internal and the OCS advised him to report to another County. 50. The 2nd Appellant, who testified as DW2, denied the charges against him and told the Court that he was a farmer and boda boda operator. He recalled on 11th January 2018, he was at work when he went to a nearby military camp to ferry people to Chwele and he returned the following day to ferry the officers to Kona Maiti where an incident had occurred. He told the Court that they went to Korongotuny with the army officers and found police officers there and he went back to his boda boda business until 6th March 2018, when he attended a security meeting where suspects were called out and his name was mentioned. He told the Court that he surrendered himself to Kipsigon Police Station OCS Ndege and the police were surprised to see him there. He told the Court that the OCS stated that the naming was for political reasons and that he should surrender in another County. He proceeded to Kericho Police Station where he surrendered and was later charged. 51. On cross-examination, he told the Court that he was a boda boda operator and that on the night of 12th and 13th January 2018, he was at home with his wife and son and that he resided at Cherwandoi. He maintained that on 12th January 2018, he ferried 2 army officers on his boda boda and also carried 2 police officers to Kipsigony and that he was acquainted to PW3 and that the scene of incident was 20 km from his residence. C. Judgment of the trial Court 52. The trial magistrate considered the evidence tendered in Court, the testimonies of the witnesses and the submissions of the parties and convicted the Appellants under Count 1 and the 2nd Appellant under Count 9 vide a judgement dated and delivered on 16th February 2023, and sentenced them to life imprisonment each under Count 1 and under Count 9 the 2nd Appellant was sentenced to serve an additional 10 years’ imprisonment vide a ruling on sentence dated and delivered 16th February 2023. D. Appeal 53. Being dissatisfied with the conviction and sentence the Appellants now appeal on grounds that I shall produce in the verbatim as follows; i. That, the trial magistrate erred in law and in fact in conducting proceedings that violated the rights of the Appellants as per the provision of the Constitution of Kenya. ii. That, the trial magistrate erred in law and facts by contradicting evidences between witnesses and investigation officer in Count one without analyzing the purported before the Court of which the trial magistrate biased relied on them and proceeded to convict the Appellants herein which is unconstitutional. iii. That, the trial Court erred in law by failing to consider the Appellants strong evidence and alibi defense that was not shaken by the Prosecution in compliance with Section 212 of the C.P.C to call for tribunal evidence but the trial Court shifted the burden on the Appellants. iv. That, the trial Court also erred by failing to proof the light used is doubtful as the incident took place at night when visibility was not conclusive at 10.00 p.m. The pundit magistrate https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18318/eng@2025-11-14 9

page 9 of 16

misapprehended to uphold the evidence as to the nature of light used as the time lucus quo/ scene of crime as the light was in shreds of doubt. v. That, the magistrate erred in law by mismanaging the case prof prosecution in order to square the whole blame on the two Appellants as the law provided that it’s not the Court to stage manage cases for the Prosecution nor is the duty of the Court to endeavor to make a case against the Appellants, where there is none. vi. That, the trial magistrate Court failed to proof the case against the second Appellant by the case of raping count nine, my Lord the Complainant didn’t give the names of the Appellants as the suspect not to have first reported in police station as she had said the Appellant is her neighbor 54. The appeal was canvassed by way of written submissions. On my perusal of the Court record, both parties complied with the Court directive and filed their submissions. 55. The Appellants filed their amended grounds of appeal in accompaniment to their written submissions and I shall produce in the verbatim as follows: i. That, the learned trail magistrate Court erred in the points of law and fact by relying on the alleged identification through recognition that was doubtful when the Prosecution witnesses failed to mention our names at the earliest opportunity as this weakened the Prosecution evidence. See in George Bundi M'Rimberia -vs- Rep. CR. Appeal No. 351 of 2006, Francis Muchiri Joseph v. Republic KCA No-(2014) eKLR & Alex Weinua Chituno-vs- Rep. CR. APPEAL No. 97 of 2020 at Nairobi Court of Appeal (2023) EKLR. Thus this Hon. Court be pleased to set us at liberty on this single ground of appeal because it is an issue of law interpreted by the Court of Appeal. Thus, the nine counts lack merit. ii. That, the learned trial magistrate erred in the points of law and facts by failing to note that the Prosecution evidence was not proved beyond any reasonable doubt in all nine counts. Thus, this Hon. Court be pleased to allow this appeal by setting aside all nine counts and proceed to set us at liberty iii. That, the trial magistrate Court erred in the points of law and facts by failing to note that the Prosecution evidence was contradictory and unbelievable. See in Kimani Ndung'u-vs-rep (1998) KLR. iv. That, the Court below faulted in the points of law by failing to note that, light in the instant matter was not proved as required in the case law of Maitanyi-vs-republic. v. That, the Court below erred in the points of law and facts by failing to note that the Appellants in this matter was not accorded a right to fair trial. vi. That, the trial Court below faulted in the points of law and facts by failing to note that it is trite law that an accused person(s) shall not be convicted on the issue of weak defense. vii. That, the learned trial magistrate Court erred in the points of law by failing to evaluate the Prosecution evidence in a proper manner by perusing the Prosecution witnesses' statements, first reports the importance of those statements can scarcely be exaggerated for they often provide a good test by which the truth or accuracy of the later statements in court can be judged. Failure by the trial Court to evaluate evidence in an exhaustive manner made the lower court below to render erroneous verdict as it was not containing the point(s) for determination and the instant judgement does not contain reasons for the decision rendered. Thus Section 169 of the CPC CAP 75 Laws of Kenya https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18318/eng@2025-11-14 10

page 10 of 16

56. viii. That, the learned mal magistrate Court finally faulted in the points of law by convicting and sentencing Appellants herein on the basis of Prosecution evidence that was malicious and actionable. ix. That, the learned trial magistrate Court erred in the points of law by proceeding this matter while hiding Prosecution witnesses wrapping witnesses’ names on their statements without explanation as to why they vitiated our trial in this illegal manner. This Court is asked to explain the reasons of these illegal actions that occurred on this matter during trial and the same to be explained legally. This trial contravened Article 14 of the international covenant on civil and to be public hearings. The same trial was contrary to articles 25 (C), 27,47,50 (C, D, J) of the political rights (ICCPR) which guarantees all persons to be equal and suit at law and all trials current constitution. The trial was contrary to Fair Administrative Action as stipulated under section 4 of the Fair Administrative Action Act, 2015. Thus, praying for liberty. The Appellants prayed that, this appeal be allowed in its totality. Conviction in 9 counts be quashed, sentence in 9 counts be set aside and the two Appellants be set at liberty unless otherwise lawfully detained. E. Analysis and Determination 57. In light of the submissions made by the parties, this being a first appeal, this Court has performed its duty of re-considering and re-evaluating the evidence adduced before the trial Court with a view to arriving at its own independent conclusions and findings (See Okeno vs. Republic [1972] EA 74). In doing so, this Court took cognizance of the fact that it neither saw nor heard the witnesses as they testified before the trial Court and, therefore, it ought to give due regard in that respect as so held in Ajode v. Republic [2004] KLR 81. 58. The above said, the issues that the Court then needs to determine are as follows; 59. a. Whether the Respondent proved the case beyond reasonable doubt b. Whether the Court should interfere with the sentences as meted out under count 1 and count 9. a. Whether the Prosecution has proved the case beyond reasonable doubt With regards to count 1, the offence of robbery with violence is a creation of Sections 295 and 296(2) of the Penal Code. The provisions provide as follows: 295. Definition of robbery: Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery. 296. Punishment of robbery: 1. ….. 2. 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 after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18318/eng@2025-11-14 11

page 11 of 16

60. Following from the foregoing provisions, the offence of robbery with violence is made up of two parts. The first part is the robbery and the other part is the aspect of violence. 61. Once the offence of robbery is proved on one hand, the offence of robbery with violence is proved if any one of the following three ingredients are also established: - 62. (a) The offender is armed with any dangerous or offensive weapon or instrument, or, (b) The offender is in the company of one or more other person or persons, or (c) The offender at or immediately before or immediately after the time of the robbery, wounds, beats, strikes or uses any other personal violence to any person. In criminal cases, the standard of proof is beyond reasonable doubt and it was due to this that Mativo, J (as he then was) in Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR expressed himself as hereunder: “ To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…… To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.” 63. In a charge of robbery with violence, proof of any one of the afore cited ingredients is enough to sustain a conviction under Section 296 (2) of the Penal Code. (See Olouch vs Republic {1985} KLR 549) The assailants herein were armed with pangas, rungus and a gun. They violently robbed PW2, PW3, PW4 and PW5. They threatened them if any of them decided not to comply with their instructions. PW4 was hit with a panga on the back and on the head. Prior to been stood down PW9 availed medical evidence to that effect showing the injuries incurred by the PW4. PW3 was raped by the 2nd Appellant. With this uncontroverted evidence, the ingredients of the offence were proved. 64. Before addressing the question of identification, it is important to recall that the quality of a witness memory may have as much to do with the absence of other distractions as with the duration of commission of the offence ( see the case of S v Henderson 27 A 3d 872 (NJ 2011). Human memory is not fool proof. It is not like a video recording that a witness needs only to replay to remember what happened. Memory is far more complex. Memory has been described as consisting of three stages: acquisition – “ the perception of the original event"; retention - "the period of time that passes between the event and the eventual recollection of a particular piece of information"; and retrieval - the "stage during which a person recalls stored information." https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18318/eng@2025-11-14 12

page 12 of 16

65. PW1, PW2, PW3, PW4 and PW5 testified that the Appellants herein jointly participated in the attack, with PW1 testifying that the 1st Appellant attacked the deceased ER by shooting him on the leg and the 2nd Appellant approached the deceased and cut him on the back of the neck with dangerous and/ or offensive weapon. Both PW1 to PW5 testified that the attack occurred under proper lighting and that they were able to identify the Appellants herein in Court and noted that they recognized them as they were their neighbours and they knew them very well. 66. I turn now to examine the evidence with regard to the identification of the perpetratorswhich forms the Appellants grounds of appeal. The appellants argue that the identification of the Appellants by the five Respondent witnesses was made under unclear and unfavorable conditions. From the foregoing Respondent’s evidence analysis, the Appellants were properly and positively identified by PW1, PW2, PW3, PW4 and PW5. They stated that they had known the Appellants prior to the incident as they were their neighbours. They stated that they knew them very well and identified that the 1st Appellant was a farmer while the 2nd Appellant was a boda boda rider. It is evident therefore, that this was not a case where the witnesses caught fleeting glimpses of the two Appellants. All the witnesses, PW1, PW2 PW3, PW4 and PW5 had ample time and opportunity to see and identify the assailants well and they were persons known to them before that day and the perpetrators took a long period of time as they raided the Respondent’s witnesses from house to house. This therefore, is not mere visual identification but a case of identification by way of voice and facial recognition. 67. In the said case of Anjononi v Republic [1980] KLR, on which the Court relied in R Kipsongo (supra) the Court stated that: “ Recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other." 68. In the case Choge Vs. Republic [1985] KLR 1 the Court of Appeal stated:“ Evidence of voice identification is receivable and admissible in evidence and it can, depending on the circumstances, carry as much weight as visual identification. In receiving such evidence, care would be necessary to ensure that it was the accused person’s voice, that the witness was familiar with it and recognized it and that the conditions obtaining at the time it was made were such that there was no mistake in testifying to that which was said and who had said it.” 69. Applying the foregoing to this case, PW1, PW2, PW3 and PW4 were invaded at around 10.00 p.m. going onwards that the Appellants attacked their village. PW1 noted that on hearing the noises coming from PW4’s house, he proceeded to head out with the deceased, ER, it was at that point that he heard the noises from the Appellants shouting that the thieves had taken the route to Uganda, trying to confuse the villagers and as E had a torch with him and it was lit he saw the Appellants were armed with a gun and panga respectively, and that was when they attacked E and he fled for his safety. He told the Court that he recognized their voices and their faces. PW2, PW3 and PW4 testified that they saw the Appellants with the aid of the D-lamp light that was shined into their bedroom from the broken bedroom window. Also, PW3 told the Court that she recognized the 2nd Appellant’s voice and face. 70. I take note of the fact that no identification parade was conducted. However, in view of the fact that PW1, PW2, PW3, PW4 and PW5 knew the Appellants very well prior to this incident, such an identification parade would have, in the circumstances, been superfluous. The failure by police to conduct an identification parade was therefore not fatal in this case. I am satisfied with the decision https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18318/eng@2025-11-14 13

page 13 of 16

of the Court below that the Respondent witnesses’ evidence of identification by voice and visual recognition was clear, positive and reliable. 71. In the circumstances, therefore, this Court is satisfied that the Respondent did indeed establish to the required standard of proof beyond reasonable doubt that indeed the Appellants had been identified as being the persons who robbed the Complainants on the material night. The Respondent established the circumstances under which the Appellants caused the death ER and AC. 72. With regards to count 9, The ingredients of rape which the Respondent must prove are set out in Section 3(1) of the Sexual Offences Act, 2006; A person commits the offence termed rape if (a) He or she intentionally or unlawfully commits an act which causes penetration with his or genital organs. (b) The other person does not consent to the penetration; or (c) The consent is obtained by force or by means of threats or intimidation of any kind. 73. PW3 testified that on 13th January 2018, at about 2.00 a.m. people attacked her house and on gaining entrance they demanded for money. It was her evidence that on gaining access to her room, one of the attackers hit her with a panga on the neck and she was able to see and identify the 2nd Appellant’s, and she told the Court that she recognized his face and voice. It was her evidence that the other perpetrator not before this Court walked into her house carrying a D-light lamp. She told the Court that the 2nd Appellant was a neighbor and she knew him very well and that he took her outside, removed her pants, laid on her and raped her. 74. PW3 narrated in detail how the assailant used force to cause an act of penetration. In other words, the act of penetration was without her consent and was obtained by force. This evidence found corroboration in the testimony of PW7 who examined PW3 and produced her P3 form as PEXH4 and her treatment notes as PEXH3. The offence of rape was thus proved beyond any reasonable doubt. 75. On the issue of inconsistencies and contradictions in the evidence of the Respondent’s witnesses, unless satisfactorily explained would usually but not necessarily result in the evidence of a witness being rejected. The question to be addressed is whether the Respondent’s witnesses’ testimonies were contradictory on the occurrence of the event and whether the contradictions (if any) are grave and point to deliberate untruthfulness or whether they affect the substance of the charge. In this regard, we stand to benefit from the definition by the Court of Appeal of Nigeria in David Ojeabuo v Federal Republic of Nigeria {2014} LPELR-22555(CA), Adamu JA; Ngolika JA; Orji-Abadua JA; & Abiru JA. that:“ Now, contradiction means lack of agreement between two related facts. Evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated and not where there are mere discrepancies in details between them. Two pieces of evidence contradict one another when they are inconsistent on material facts while a discrepancy occurs where a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains." 76. Applying the above tests to this case, I find no inconsistencies and contradictions in Respondent’s witnesses’ evidence. Reasonable doubt is not mere possible doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence leaves the mind of the Court in that condition that it can say it feels an abiding conviction to a moral certainty of the truth of the charge. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18318/eng@2025-11-14 14

page 14 of 16

Further, the evidence in question is considered together as a whole including the defense. Accordingly, the argument that Respondent’s evidence was tainted by inconsistencies and contradictions fails. 77. In view of the foregoing analysis, it is clear that the evidence tendered by the Respondent was quite overwhelming against the Appellants and that the charges had been proved beyond reasonable doubt. The evidence tendered squarely placed the Appellants at the scene of crime. The conviction of the appellants was safe. 78. Whether the Court should interfere with the sentences as meted out under count 1 and count 9. 79. As regards the sentence, the punishment for a person who is found guilty of robbery with violence under Section 296(2) of the Penal Code prescribes a mandatory death sentence up. The Trial Court called for a pre-sentence report that indicated that the Appellant was first time offender and his family members stated that they did not know of his whereabouts until they were confronted by the probation officer. 80. In Nelson Ambani Mbakaya Vs. Republic (2016) eKLR, the Court of Appeal stated that:“ Sentencing of an accused person after conviction involves the exercise of discretion by the trial court. That discretion must of course be exercised judiciously rather than capriciously, depending on the circumstances of each case. As what is challenged in this appeal is essentially the exercise of discretion by the trial court, this Court is normally slow to interfere with that exercise of discretion unless it is demonstrated that the trial court acted on the wrong principle; ignored material factors; took into account irrelevant considerations; or on the whole that the sentence is manifestly excessive……..” 81. I have considered the issue of harsh sentence. The penalty under Section 296(2) of the Penal Code is death. 82. However, recent judicial development from this Court, the Court of Appeal and the Supreme Court has changed the tides in as far as mandatory statutory sentences are concerned. It is on this basis that I accept the invitation by the Appellants to intervene on the sentence. 83. In the Muruatetu Case, the Supreme Court outlawed mandatory death penalty for murder as unconstitutional and struck out Section 204 of the Penal Code to the extent that it prescribed mandatory death sentence upon a murder conviction. 84. The reasoning in Muruatetu Case respecting Section 204 of the Penal Code, which section provides for the penalty for the offence of murder, has been extended by the Court of Appeal to the mandatory death penalty in robbery with violence cases and probably all other similar mandatory death sentences. That was in William Okungu Kittiny v R [2018] eKLR. 85. This Court must therefore re-evaluate the sentence imposed. While the offence of robbery with violence is serious, the Appellants mitigation, the circumstances of the case, the time they have served, and the need for rehabilitation must be considered. I hereby set aside the death sentence imposed by the trial Court and substitute it with a sentence of Forty (40) years imprisonment. Further, and in line with the provisions of Section 333(2) of the Criminal Procedure Code, I direct that the sentence shall run from the date the Appellants were respectively put in custody. The sentence of ten years meted against the 2nd Appellant for the charge of rape is sustained wherefore he shall cumulatively serve a custodial sentence of 50 years. It is so ordered. DELIVERED, SIGNED AND DATED AT BUNGOMA THIS 14TH DAY OF NOVEMBER 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18318/eng@2025-11-14 15

page 15 of 16

M.S.SHARIFF JUDGE In the presence of: 1St Appellat 2nd Appellant Ms Kibet for the Respondent. Peter Machoni – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18318/eng@2025-11-14 16

page 16 of 16