Bernard Kiprop v Republic

5. b. That the police conduced shoddy investigation by failing to pursue exculpatory evidence that the appellant was not at vicinity of the incident c. That the trial court failed to supply the appellant with proceedings to prepare his defence d. That the prosecution adduced inconsistent and contradictory evidence e. That the trial magistrate was biased and impartial f. That the trial magistrate failed to grant the appellant the benefit of doubt as reasonable doubt was created over his involvement in the gang rape g. That the trial magistrate failed to apply principles of sentencing as enumerated in sentencing policy guidelines 2023 h. That the trial magistrate failed to comply with section 333(2) of the CPC which required that period serve din remand be considered The appellant prays may the Honorable court be leased to allow the appeal the conviction, set aside the sentence and set me at Liberty. Parties’ Submissions 6. The Appellant Reiterated his ground of appeals. On the other hand, the respondent submitted that for the ofience of gang rape to be proved, the prosecution was required to prove that there was penetration without consent, that the ofience was committed in association with another or others, or any other with common intention, is in company of another or others and that there was positive identification of the perpetrator. 7. On commission of the ofience, the prosecution submitted that the complainant while on her way from the farm met the 4 accused persons herein at 6 p.m. while there was still light and she positively identified them and there is therefore no doubt on identification as the 4 were known to the complainant. 8. On issue of penetration the complainant testified that she was grabbed and forced to lie on the ground and one of them held her leg, the other held the other leg and the 3rd pinned her hands down as the 4th inserted his penis into her vagina.she sated that penetration was done in rounds by the 4 accused persons one after the other until late in the night and in the morning, they left her. Further that at the time of the rape, she struggled to free herself bur was overpowered. The state counsel submitted that the penetration was without her consent. She submitted that treatments notes were produced to corroborate complainant’s evidence and PW3 the medical officer confirmed that there was spermatozoa, pus cells and blood cells and the complainant was walking abnormally and had tenderness on her upper arms and thighs which she sustained at the time of struggle with perpetrators. 9. On identification, the prosecution counsel submitted that the incident occurred at 6 p.m. which was still bright and the perpetrators were well known to the complainant. 10. She further submitted that the appellant herein stated that he was not present at the scene but he did not avail a witness to corroborate his defence of alibi. 11. On contradictory or inconsistent evidence, she submitted that evidence adduced was consistent and the appellant has not pointed out any material inconsistency or contradiction to poke holes on prosecution evidence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4188/eng@2026-03-11 2

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12. On issue of shoddy, investigation, not being granted benefit of doubt and the trial court being biased, she submitted that they have been raised on appeal and that the grounds are baseless and should be dismissed. 13. On failure to be given copy of proceedings, the prosecution counsel submitted that the appellant did not request for typed proceeding to enable him prepare defence; that when he didn’t raise the issue on 2nd September 2024 when the ruling on whether he had a case to answer was read and on 25th September 2024 when he was placed on his defence, the appellant said he was ready to proceeded, proceeded and closed his case. 14. On period served in remand, the prosecution counsel submitted that the trial magistrate considered by stating that sentence to run from 9/10/2023 when they took plea and there is therefore no reason for this court to interfere with sentence.in conclusion, she submitted that the charge was proved beyond reasonable doubt as against the 4 accused persons the appellant herein included. Analysis and Determination 15. This being a first appeal, this Court is obliged to reconsider and re-evaluate the evidence afresh and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify. This duty is settled in Okeno v Republic (1972) EA 32 and Pandya v Republic (1957) EA 336. 16. In view of the above, I have considered evidence adduced before the trial court. The ofience of gang rape is created under section 10 of the Sexual Offences Act. For the prosecution to secure a conviction, it was required to prove beyond reasonable doubt that: a. there was penetration without the consent of the complainant; b. the act was committed in association with one or more persons, or with common intention; and c) the appellant was positively identified as one of the perpetrators. 17. On whether penetration without consent was proved, the complainant gave a detailed and consistent account of how she was accosted by the appellant and his co-accused while walking home from the farm at about 6.00 p.m. She testified that she was forcefully grabbed, overpowered, and each of the four accused persons, in turns, penetrated her vaginally without her consent. Her evidence clearly demonstrated lack of consent, resistance, and the use of force. 18. The complainant’s testimony was materially corroborated by medical evidence. PW3, the medical officer, confirmed the presence of spermatozoa, pus cells, and blood cells, as well as tenderness on the complainant’s thighs and upper arms and abnormal gait, all of which were consistent with recent forceful sexual intercourse and struggle. This evidence firmly supported the complainant’s account and established the element of penetration beyond reasonable doubt. 19. On whether the ofience was committed in association with others, the complainant’s evidence was unequivocal that the appellant acted jointly with three others. She described how some of the assailants restrained her limbs while another penetrated her, and that the act was repeated in turns. This evidence clearly demonstrated common intention and joint participation, bringing the conduct squarely within the ambit of section 10 of the Sexual Offences Act. 20. As regards identification, the Court is satisfied that this was a case of recognition rather than mere identification. The ofience occurred at about 6.00 p.m., when there was still sufficient daylight. The complainant knew all the perpetrators, including the appellant, prior to the incident. Further, the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4188/eng@2026-03-11 3

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attackers remained with her for a considerable period, eliminating the possibility of mistaken identity. The circumstances prevailing at the time were therefore favourable for positive recognition. 21. The appellant raised a defence of alibi, stating that he was not present at the scene. However, this defence was not supported by any independent evidence. In any event, the trial court correctly weighed the defence against the strong and consistent prosecution evidence and rejected it. This Court finds no error in that evaluation. 22. On the alleged inconsistencies and contradictions in the prosecution evidence, this Court has reevaluated the record and finds none that are material or that go to the root of the prosecution case. Minor variations, if any, are to be expected in truthful testimony and do not detract from the overall consistency and credibility of the evidence adduced. 23. The grounds alleging shoddy investigations, bias, and failure to accord the appellant the benefit of doubt were not substantiated. The appellant did not demonstrate how the alleged investigative gaps prejudiced his defence, nor was any bias on the part of the trial court evident from the record. 24. On the complaint that the appellant was not supplied with proceedings to prepare his defence, the record shows that at the close of the prosecution case and when placed on his defence, the appellant indicated readiness to proceed and did in fact tender his defence without raising the issue. This ground therefore lacks merit. 25. Turning to sentence, section 10 of the Sexual Offences Act prescribes a minimum sentence of fifteen years’ imprisonment. The trial magistrate imposed the statutory minimum sentence and expressly ordered that the sentence run from the date the appellant took plea, thereby complying with section 333(2) of the Criminal Procedure Code. The record shows that the trial court took into account the period spent in custody and the applicable sentencing principles. 26. This Court finds no misdirection, illegality, or impropriety in the sentence imposed that would warrant interference. The sentence was lawful, proportionate, and in line with the Sentencing Policy Guidelines. 27. In the result, this Court finds that the ofience of gang rape was proved beyond reasonable doubt against the appellant. The conviction was sound and the sentence lawful. 28. Final Orders: a. The appeal against conviction and sentence is hereby dismissed in its entirety. b. The conviction and sentence imposed by the trial court are upheld. DATED AND SIGNED AT NAIROBI THIS 11TH DAY OF MARCH 2026. R NGETICH JUDGE DATED, COUNTERSIGNED AND DELIVERED AT ELDORET THIS 17TH DAY OF MARCH 2026. J.R. WANANDA JUDGE In the presence of:Court Assistant – Brian Kimati State Counsel – Kosgei https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4188/eng@2026-03-11 4

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Accused –Present Virtually from ELDORET MAIN PRISON. Ms Kosgei for DPP. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4188/eng@2026-03-11 5

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