Amos Kimutai Chepkwony v Republic

7. Appellant’s Submissions: 8. Issue a: Whether the Appellant was properly identiffed by the complainant. 9. The evidence before the trial court showed that the Appellant was unknown to the Complainant (PW2) and her sister (PW3), who saw him for the first time on the date of the alleged crime, around 6:30 a.m. 10. PW2 stated that in the room where the alleged crime took place, a torch was used, and it was through this torchlight that she saw the Appellant as he raped her. 11. A village elder (PW4) told the Trial Court that he and others were informed by a third person, who was present at the alleged crime scene, that the Appellant was also involved in the crime, so they arrested him. 12. The police officer (PW5) informed the trial court that the complainant/victim and the accused persons were together at the Chief's Camp and were transported to the Police Station together. 13. PW2 identified the Appellant only in the dock; no identification parade was conducted. 14. In Gabriel Kamau Njoroge v Republic [1987] KECA 4 (KLR), the Court of Appeal held, “ Dock identification is worthless; the court should not rely on a dock identification unless this has been preceded by a properly conducted identification parade.” 15. PW2 and PW3 were placed with individuals alleged to have committed the offence, including the Appellant. The complainant (PW2) was not asked to describe her assailants, whom she saw for the first time at dusk in a dark room while under emotional and physical stress. Instead, she was shown three individuals tied with ropes, in the presence of her family, and asked if they had assaulted her. She confirmed this. The Appellant was not given any identification opportunity except as one of the alleged perpetrators. 16. The police failed to carry out a proper identification parade. The Court of Appeal has described the identification method used as "useless" and inadequate for upholding a conviction. Without proper procedures, the Appellant’s presence at the scene remains unproven and casts doubt on the case against him. 17. b. Whether the defence of alibi was properly considered by the trial court? 18. The trial court dismissed the Appellant’s alibi as "an afterthought," failing to consider whether the Prosecution had actually disproved it. The Appellant, who initially lacked legal counsel, may not have known the proper procedure. Yet, the timing of his alibi did not absolve the prosecution of its responsibility to challenge it. By brushing aside the defence, the court stepped into the prosecution's shoes rather than allowing the prosecution to respond. 19. The Court of Appeal in Sigei v Republic [2023] KECA 154 (KLR) held thus, "In Michael Saa Wambua (supra) this Court explained how the prosecution can counter an alibi defence as follows: "Our construction of section 309 of the Criminal Procedure Code and understanding of the principle in the Njuki & 4 Others versus Republic case, (supra) is that there are two ways in which an alibi defence put forth by an accused person may be rebutted. One of them is for the prosecution to call rebuttal evidence. The second is for the court to weigh it against the totality of the prosecution's case.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1293/eng@2026-02-05 2

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20. Although the Appellant brought a witness to back up his alibi, the trial magistrate ignored this testimony. The prosecution had the option to reopen its case to address the alibi, but did not. A valid defence should not be dismissed simply because of when it is raised. As the Court of Appeal stated in Rie v Republic [1984] eKLR, an alibi need only create a reasonable doubt in the court’s mind. 21. Similarly, in Athuman Salim Athuman v Republic [20161eKLR, the Court of Appeal held that: "It is trite that by setting up an alibi defence, the appellant did not assume the burden of proving its truth, so as to raise a doubt in the prosecution case... The burden to disprove the alibi and prove the appellant's guilt lay throughout on the prosecution...the purpose of the defence of alibi is to account for so much of the time of the transaction in question as to render it impossible for the accused person to have committed the imputed act..." 22. The Appellant was incorrectly identified and improperly placed at the scene. Regarding whether the Prosecution discharged the burden of proof to the requisite standard: PW2 testified that one of the accused persons wore a condom, and that individual was not the Appellant. She further stated that she was raped by four persons, including the Appellant, from approximately 6:30 pm to 10:00 pm, a duration of about 3.5 hours. (4 sentenced to 15 years in prison for gang rape, 2024) The Clinical Officer (PWI) indicated that sperm was present in the complainant at examination, but did not conduct any sperm testing. Similarly, PWI noted that there were no bruises on the penises of the suspects. 23. In summary, the Appellant is said to have participated in the offence for roughly 52 minutes, without a condom and without suffering any injuries from repeated forced acts. Despite the presence of sperm, investigators failed to collect samples for testing. This oversight was a major lapse, as available biological evidence could have confirmed the perpetrator’s identity. By neglecting this, the investigators left crucial questions unanswered. 24. Respondent Submissions 25. 26. To prove gang rape, three elements must be established: penetration, identification, and the number of perpetrators. The High Court at Kisii stated that for the prosecution to prove a charge based on the offence of gang rape, it must prove the following four elements beyond a reasonable doubt: i. Penetration as defined by section 2 of the Sexual Offences Act, without consent thereof. ii. In association with another or others, or any other with common intention, is in the company of another or others who commit the offence of rape. iii. Positive identification of the perpetrator. The central question is whether all these elements were proved beyond a reasonable doubt. 27. Penetration: 28. The complainant stated that on 9th December 2023, she visited her boyfriend, Shadrack Kipkurui Rono, at his house. She was accompanied by her sister, PW3, on board a motorbike. As she left his house in the company of the said Shadrack Kipkurui Rono and PW3, the appellant and his co-accused were met. The appellant and his accomplices carried her, against her will, back into her boyfriend's house and onto her boyfriend's bed in his bedroom, where they raped her in turns. The complainant stated that they inserted their penis into her vagina in turns. (See pages 4, 5 & 6 of the typed proceedings). 29. Her testimony on penetration was corroborated by medical evidence. PW l, the clinical officer stated that the complainant was taken to Emurua Dikir Health Center, where, upon examination, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1293/eng@2026-02-05 3

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the following findings were made: (see page 3 of the typed proceedings)There were inflammations and injuries on the vaginal wall.Bruises on the labia majora on the left side.Whitish, foul-smelling discharge.Presence of spermatozoa.Her skirt was muddy, and her inner pants were foul-smelling with stains. 30. These findings indicate penetration and corroborate the complainant's testimony regarding the gang rape. (Odhiambo v Republic (Criminal Appeal 97 of 2021) [2023] KECA 949 (KLR) (28 July 2023) (Judgment), 2023) 31. Identiffcation: 32. The complainant stated that the appellant and his two accomplices forcefully carried her back to her boyfriend's house. It was the appellant who pulled her (Odera, n.d.) into the house. The appellant was the third one to rape her. It was 6:00 pm when the appellant pulled the complainant into the said house, and according to the complainant, it was not yet dark. She added that she saw the appellant and their accomplices' faces. The court also indicated that, on observing the complainant's demeanour, it formed the impression that she was telling the truth, as she was composed, consistent, and emotional. (See page 6 of the typed proceedings) 33. PW3, who accompanied the complainant to her boyfriend's house, also stated that the appellant was at the scene. In fact, during the incident, it was the appellant who assaulted her as they attempted to forcefully defile her, but she managed to struggle and free herself and ran away. At the time of the struggle, darkness hadn't set in, so visibility wasn’t impaired. When she fled, she left the complainant, the appellant, and his accomplices at the scene. She fled before darkness set. (See pages 10 — 14 of the typed proceedings). 34. The alibi defense was duly considered: 35. The trial court, in its judgment, analyzed the appellant's alibi defense and concluded that this evidence did not undermine the prosecution's case. Accordingly, the defense was duly considered but found lacking in merit. 36. The Sentence: Section 10 of the Sexual Offenses Act states that "any person who commits the offense 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 offense of Rape or defilement is guilty of an offense termed gang rape and is liable upon conviction to imprisonment for a term not less than fifteen years but which may be enhanced to imprisonment for life.” 37. The appellant was sentenced to 15 years in jail. This was the minimum sentence applicable to the offense charged, and, as per the Supreme Court's determination in R v Joshua Guchuki Mwangi, petition number E018 of 2023, the court ought not deviate from it. Moreover, the offence unfolded violently over nearly six hours, with the complainant’s freedom brutally taken by the appellant and his co-accused. The complainant’s visible distress as she recounted her ordeal underscored the gravity of the crime. The offenders acted purely for their own gratification. Taken together, these facts call for a strong deterrent. The 15-year sentence, being the minimum, is in fact lenient, and there is no reason to disturb it. 38. Issues Analysis And Determination 39. Upon review of the trial court record, proceedings, and submissions, the core issue is whether the elements of the offence charged were proved to the required standard and whether the sentence imposed was excessive. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1293/eng@2026-02-05 4

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40. Duty Of The First Appellate Court 41. In the Kenyan criminal justice system, the High Court serves as the first appellate court for appeals from subordinate courts under the Constitution and Criminal Procedure Code. The primary duties of the first appellate court in criminal appeals are as follows: 42. i. Re-evaluationofEvidence 43. The first appellate court is duty-bound to reconsider the evidence afresh, not merely to review whether the trial court’s findings are supported. 44. It must marshal all evidence on record, weigh conflicting testimonies, and independently assess both the credibility and reliability of witnesses. 45. It draws its own conclusions regarding convictions or acquittals, taking care to allow for the trial court's advantage of seeing and hearing witnesses. See the cases of Case references Francis Kimani Karanja vs R (2016) KEHC 458 and R vs Kiilu and another Vs R 1KLR174. 46. ii. Assessment of Legal and Factual Questions The appellate court analyses both matters of law and fact for first appeals, which are otherwise confined to points of law. 47. It examines whether the trial court misinterpreted or ignored material evidence or legal principles and can reverse decisions if such errors significantly affect the outcome. 48. In criminal appeals such as Okenov Republic EA32, the court emphasized that it is not sufficient to merely find evidence supporting the trial court’s findings. The first appellate court must make an independent assessment and decide whether the conviction or acquittal should stand. 49. Legal Definition: Gang rape occurs when rape or defilement is committed in association with others, or when two or more persons act with a common intention to commit rape or defilement. The law recognizes culpability even if an accused did not directly penetrate the victim but participated in, facilitated, or aided the offence with knowledge of the others’ intent. 50. To prove the offense of gang rape, three elements should be established, namely penetration, identification, and the number of perpetrators. The High Court sitting at Kisii rendered itself in the following terms: “It is therefore obvious that for the prosecution to prove a charge based on the offence of gang rape, it must prove the following four elements beyond a reasonable doubt: i. Penetration as defined by section 2 of the Sexual Offences Act without consent thereof. ii. In association with another or others, or any other with common intention, is in the company of another or others who commit the offence of rape. iii. Positive identification of the perpetrator. 51. The question this court must answer at the end of its determination is: were all these elements proved beyond a reasonable doubt?" 52. The complainant stated that on 9th December 2023, she visited her boyfriend, Shadrack Kipkurui Rono, at his house. She was accompanied by her sister, PW3, on board a motorbike. As she left his house in the company of the said Shadrack Kipkurui Rono and PW3, the appellant and his co-accused were met. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1293/eng@2026-02-05 5

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53. The appellant and his accomplices carried her, against her will, back into her boyfriend's house and onto her boyfriend's bed in his bedroom, where they raped her in turns. The complainant stated that they inserted their penis into her vagina in turns. Her testimony on penetration was corroborated by medical evidence. PW l, the clinical officer stated that the complainant was taken to Emurua Dikir Health Center, where, upon examination, the following findings were made: There were inflammations and injuries on the vaginal wall. Bruises on the labia majora on the left side. Whitish foul-smelling discharge. Presence of spermatozoa. Her skirt was muddy, and her inner pants were foulsmelling with stains. 54. The findings are symptomatic of penetration, thus corroborating the complainant's testimony as to the gang rape. 55.Identiffcation: 56. The complainant stated that the appellant and his two accomplices forcefully carried her back to her boyfriend's house. It was the appellant who pulled her into the house. The appellant was the third one to rape her. It was 6:00 pm when the appellant pulled the complainant into the said house, and according to the complainant, it was not yet dark. She added that she saw the appellant and their accomplices' faces. The court also indicated that, on observing the complainant's demeanour, it formed the impression that she was telling the truth, as she was composed, consistent, and emotional. 57. PW3, who accompanied the complainant to her boyfriend's house, also stated that the appellant was at the scene. In fact, during the incident, it was the appellant who assaulted her as they attempted to forcefully defile her, but she managed to struggle and free herself and ran away. At the time of the struggle, darkness hadn't set in, so visibility wasn’t impaired. When she fled, she left the complainant, the appellant, and his accomplices at the scene. She fled before darkness set. 58. The alibi defense was duly considered: 59. The trial court, in its judgment, analysed the appellant's alibi defense and held that the said evidence did not shake the prosecution's case. This was sufficient reason to state that the defense was duly considered but found lacking in merit. 60. The sentence: Section 10 of the Sexual Offenses Act states that "any person who commits the offense 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 offense of Rape or defilement is guilty of an offense termed gang rape and is liable upon conviction to imprisonment for a term not less than fifteen years but which may be enhanced to imprisonment for life.” 61. The appellant was sentenced to 15 years in jail. This was the minimum sentence applicable to the offense charged, and, as per the Supreme Court's determination in R v Joshua Guchuki Mwangi, petition number E018 of 2023, the court ought not deviate from it. 62. In addition, the offence was carried out with violence over nearly six hours, during which the complainant’s freedom was harshly stripped away by the appellant and his co-accused. The complainant’s visible anguish while describing her ordeal highlights the seriousness of the crime. The offenders acted solely for their own pleasure. All these factors together demand a strong deterrent. The 15-year sentence, being the minimum, is lenient and should not be disturbed. Thus, the court makes the orders. i. The appeal is dismissed, and the conviction upheld and sentence affirmed https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1293/eng@2026-02-05 6

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DATED AND DELIVERED AT KILGORIS VIA MICROSOFT TEAMS THIS 5TH DAY OF FEBRUARY 2026 ………………………….. CHARLES KARIUKI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1293/eng@2026-02-05 7

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