Benjamin Eleman Echor & 1 other v Republic

4. The complainant testified as PW1. She stated that she was unemployed, resided in [particulars withheld], and was a mother of three children. She recalled that on 14th November 2024 at about 1:30 a.m., she left her home and went to Makuti, where she had a meal. Thereafter, she began her journey back home. 5. On her way, she encountered four young men who called out to her and asked that she give them Kshs. 50/= to buy miraa (khat), which she declined. Among them, she recognized the 2nd Appellant and one Esinyen Echor. She testified that she accompanied the group to a village known as Lochere Ekal, where she purchased alcohol for them worth Kshs. 400/=, although she did not partake, as she was on medication. 6. She further testified that she requested the men to escort her home, which they agreed to do. However, upon reaching a flyover, Esinyen slapped her and demanded the balance of the money she had remaining. She refused, explaining that the money was meant for rent. Esinyen struck her again, and as she struggled with him, his accomplices joined in and began assaulting her. 7. She stated that Esinyen then produced a knife, tore the shorts she was wearing, removed them together with her undergarments, and cut her ear. Thereafter, the 1st Appellant removed his trousers and was the first to penetrate her, as Esinyen and the 2nd Appellant restrained her by holding her hands. Another individual, whom she only knew by appearance, stood nearby. The 2nd Appellant, who was wearing shorts at the time, was the second to sexually assault her while the others held her down. The third individual also took turns, and Esinyen was the last. 8. She testified that she was rescued by G4S security officers guarding a nearby Total petrol station, who intervened and struck Esinyen as he was on top of her. The assailants then fled towards the airport. She recalled that she was left naked, in pain, and bleeding from the ear. The officers took her to a nearby vendor, who provided her with shorts, after which they escorted her home. 9. She reported the incident the following day at Lokichogio Police Station and was taken to AIC Hospital, where she received treatment. She further testified that the 1st Appellant dropped his mobile phone at the scene, which was later recovered. She added that the area where she initially encountered the assailants was well lit with electricity, enabling her to clearly see and recognize them, as they were her neighbors. She referred to the 1st Appellant as “Echor” and the 2nd Appellant as “Ekidor,” also known as “Bab G,” a boda boda rider. She maintained that she did not consent to the sexual acts and that she was assaulted before being forcibly violated. 10. On cross-examination by the 1st Appellant, she stated that she knew him very well and confirmed that he was among her attackers. She further stated that a mobile phone belonging to him was recovered at the scene. 11. On cross-examination by the 2nd Appellant, she reiterated that he was among the attackers and that he was the one who led them to the place where she purchased alcohol. She also stated that he was wearing earrings at the time of the incident. 12. PW2, a resident of Lokichogio and a security officer with G4S, testified that on 14th November 2024 at about 4:00 a.m., he was on duty when he heard a woman screaming for help. Together with his colleague, Dan, they rushed to the scene where they found five individuals, that is, four men and one woman. 13. He testified that upon their arrival, two of the men fled, while two others were holding the woman by her hands as another man was in the act of sexually assaulting her. His colleague struck the assailant who was on top of the woman with a pipe, whereupon the attackers began to flee. He further stated https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4598/eng@2026-04-09 2

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that as one of the men who had been restraining the woman attempted to run, he dropped a mobile phone at the scene. 14. PW2 testified that they escorted the complainant to the flyover and that the matter was reported to the police the following day. He stated that although the scene was dark, he used a torch to illuminate the area and was able to identify the assailants. He further stated that the mobile phone recovered at the scene belonged to the 1st Appellant, as it bore his photograph on the home screen, and that he also saw the 2nd Appellant at the scene. 15. He added that the complainant had sustained visible injuries, including a cut on the ear, injuries to the mouth, and was bleeding profusely. 16. On cross-examination by the 1st Appellant, PW2 maintained that he saw him at the scene and that he dropped his mobile phone while attempting to flee. He further dismissed as untrue the assertion that the 1st Appellant had been robbed of his phone. 17. On cross-examination by the 2nd Appellant, he reiterated that he found him at the scene in the company of the other assailants. 18. PW3, a clinical officer based at Lopiding Sub-County Hospital, testified on behalf of his colleague, whose handwriting and signature he was familiar with, and who had examined the complainant on 16th November 2024 and completed the P3 form. 19. He testified that at the time of examination, the complainant’s clothing, particularly her upper garment, was blood-stained. She had sustained multiple injuries, including bruises on the right side of her face accompanied by a swollen right eye, bruises on the nose, and swelling of the lower lip on the left side of her mouth. She also had a loose upper incisor tooth and a cut wound on her left ear, which was bleeding. Additionally, she had bilateral bruises on her lower limbs and complained of chest pain. 20. Upon examination of her genitalia, he noted that the labia majora and minora appeared normal, the hymen was broken, and there were lacerations on the vaginal walls. An examination using the finger revealed the presence of blood stains, and he further observed a bloody vaginal discharge. 21. PW4 testified that he was the investigating officer in this matter. He recalled that on 14th November 2024, he received a distress call from members of the public reporting an incident of gang rape at Lochereakal Village in Lokichogio. He proceeded to the scene in the company of a colleague, but upon arrival, he established that the victim had already been taken to AIC Health Centre for treatment. 22. Upon returning to the station, he found that the report had already been formally recorded. He thereafter escorted the victim to Lopiding Hospital for further medical attention. 23. At about 11:00 a.m. on the same day, two G4S officers visited the station and reported that they had recovered a mobile phone at the scene of the incident, near Global Primary School. PW4 recorded their statements and took possession of the phone as an exhibit. He stated that when the phone rang, he answered it while posing as a Good Samaritan who had recovered the phone from street children. 24. On 15th November 2024 at around 7:00 p.m., PW4 arrested the 1st Appellant, who was identified as the owner of the said mobile phone, at a Safaricom M-KOPA shop in Lokichogio. Upon arrest, the 1st Appellant was found in possession of 26 rolls of bhang. He subsequently led the police to the arrest of the 2nd Appellant. 25. PW4 further testified that the complainant narrated to him that on the material day at about 1:30 a.m., she was walking from Makuti Hotel when she encountered one Esinyen in the company of others. The group demanded that she buys them alcohol, and she complied by purchasing alcohol https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4598/eng@2026-04-09 3

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worth Kshs. 400/=. Thereafter, they turned on her and assaulted her. Esinyen, together with another, carried her to the Globe Primary area where they tore her trouser shorts and removed them along with her undergarments. The group then proceeded to take turns sexually assaulting her while the others restrained her. 26. He stated that the complainant screamed for help and was eventually rescued by G4S security officers who were guarding Total Petrol Station. The officers took her home. PW4 confirmed that a mobile phone was recovered at the scene, which he produced as an exhibit. He also produced the complainant’s blood-stained trousers as part of the exhibits before the court. 27. The evidence of PW4 marked the close of the prosecution’s case. The trial court found that a prima facie case had been established and accordingly placed the Appellants on their defence. 28. The defence did not call any independent witnesses. 29. The 1st Appellant testified as DW1. He stated that he was a boda boda rider and a resident of Lokichogio Town. It was his evidence that on the night of 14th November 2024, while heading home and upon reaching the flyover, he found two men with the complainant, who was crying. Upon inquiring what was happening, he alleged that he was attacked by the 2nd Appellant and one Ekidor, who were with the complainant, and that they took his mobile phone. He further stated that, as they were armed, he fled the scene. The following day, he went to Safaricom to check on the status of his phone and was informed that it was still on. He was subsequently arrested. 30. On cross-examination by the 2nd Appellant, he confirmed that the 2nd Appellant was in the company of Ekidor and that they were with the complainant. He added that he had reported the loss of his phone to M-KOPA before planning to make a formal report to the police. 31. On cross-examination by the Respondent, he stated that he was coming from town at about 4:00 a.m. when his phone was snatched, but later clarified that the incident occurred at around 2:00 a.m. He stated that he found three people at the flyover, including the complainant, and alleged that the 2nd Appellant and another person not before the court raped the complainant. He added that one of them was armed with a knife and that he was able to see what transpired using his torch. He further stated that he knew the two individuals prior to the incident and also knew the complainant from when she attended St. John Primary School. He later denied that he was a boda boda rider and instead stated that he was a casual labourer. 32. The 2nd Appellant testified as DW2. He stated that he was a boda boda rider and a resident of Lokichogio Town. His evidence was that he was arrested on 18th November 2024 at the flyover in Lokichogio Town but was not informed of the reason for his arrest. He was subsequently taken to court where he met the 1st Appellant, who he alleged was smiling and claiming that his enemy had been brought. 33. On cross-examination by the prosecution, he stated that at the time of the alleged incident he was with his brother’s wife. He further stated that he knew the complainant but did not know the 1st Appellant. 34. The evidence of DW2 marked the close of the defence case. Judgment was thereafter delivered on 19th February 2025, wherein the Appellants were convicted and each sentenced to twenty-five (25) years’ imprisonment on the main count. 35. Aggrieved by the judgment of the trial court, the Appellants lodged the present appeals seeking to have both the conviction quashed and the sentence set aside. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4598/eng@2026-04-09 4

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36. The 1st Appellant’s appeal is premised on the grounds that he pleaded not guilty; that the prosecution’s evidence was riddled with contradictions; that his defence was not duly considered; that crucial witnesses were not called; and that the trial court improperly relied on secondary evidence in convicting him. 37. The 2nd Appellant’s appeal is premised on the grounds that he pleaded not guilty; that his identification was not watertight; that the prosecution failed to prove its case beyond reasonable doubt; that he was not arrested at the scene of the crime; and that his defence was not considered. 38. From the record, only the Appellants filed submissions in support of their appeals, which may be summarized as follows: 1st Appellant’s Submissions 39. The 1st Appellant contends that he was not among the individuals who allegedly called or approached the complainant, as asserted in her testimony. He maintains that he was, in fact, attacked at the scene, during which he lost his mobile phone, and was forced to flee in order to safeguard his life. 40. He further submits that the amendment of the charge sheet to include the ofience of gang rape was not supported by the evidence on record. He also argues that there was an inordinate delay in consolidating his case with that of the 2nd Appellant. 41. Additionally, he questions the complainant’s conduct, particularly her decision to be in the company of men unknown to her late at night. He argues that the trial court failed to consider the possibility that one of the individuals may have been known to her, including the possibility that one of them was her boyfriend. 2nd Appellant’s Submissions 42. The 2nd Appellant begins by contending that the charge sheet was defective, arguing that it contained contradictory statements. He further submits that the prosecution’s request to amend the charge sheet to include the ofience of gang rape was actuated by malice. 43. He also asserts that he was framed for the ofience. Issues, Analysis, and Determination 44. Having carefully considered the grounds of appeal, the record of the trial court, and the submissions filed by the Appellants, this Court identifies the following issues for determination: a. Whether the charge sheet was defective; b. Whether the prosecution proved the ingredients of the ofience of gang rape against the Appellants beyond reasonable doubt; c. Whether the evidence of the prosecution witnesses was fraught with contradictions and inconsistencies; d. Whether the prosecution failed to call crucial witnesses; and e. Whether the Appellants’ defence was rejected without proper consideration. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4598/eng@2026-04-09 5

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Analysis Whether the Charge Sheet was Defective 45. The legal threshold for a proper charge sheet is set out under Section 134 of the Criminal Procedure Code (Cap 75, Laws of Kenya), which requires that a charge contain sufficient particulars to inform the accused person of the nature of the ofience facing them. Further, Section 214 of the said Code permits amendment of a charge at any stage of the trial, provided that no prejudice is occasioned to the accused. 46. In the present case, the Appellants contend that the charge sheet was defective on account that the amendment introducing the ofience of gang rape was actuated by malice. However, from the record, the amendment appears to have been necessitated by the evidence that emerged during trial, particularly the complainant’s account that she was assaulted by multiple perpetrators acting jointly. 47. The ofience of gang rape is defined under Section 10 of the Sexual Offences Act, which provides that where a person, in association with others, commits rape, each person is deemed to have committed the ofience of gang rape. 48. In Jason Akumu Yongo v Republic [1983] eKLR, the Court held that a charge is not defective merely because of minor discrepancies, so long as it discloses an ofience known in law and does not prejudice the accused. There is nothing on record to demonstrate that the Appellants were denied an opportunity to recall witnesses or to adjust their defence following the amendment. 49. In the premises, this Court finds that the charge sheet was not fatally defective. Whether the Prosecution Proved the Ingredients of Gang Rape Beyond Reasonable Doubt 50. The ingredients of gang rape under Section 10 of the Sexual Offences Act, read together with Section 3 thereof, are: a. Intentional and unlawful penetration; b. Lack of consent by the complainant; and c. Participation by more than one person acting in concert. 51. The complainant gave a detailed account of the events of the material night. She testified that she met individuals known to her, bought them alcohol, and later requested them to escort her home due to the late hour. Upon reaching the flyover, one of the assailants, Esinyen, assaulted her and demanded money. When she resisted, he struck her again, and his accomplices joined in the assault. 52. She further testified that she was overpowered, restrained, and subjected to sexual assault by the four men who took turns violating her. Her evidence clearly establishes the element of multiple perpetrators acting in concert. 53. On penetration, Section 2 of the Sexual Offences Act defines it as the partial or complete insertion of the genital organ of one person into the genital organs of another. The complainant’s testimony on penetration was corroborated by the medical evidence of PW3, the clinical officer, who observed lacerations on the vaginal walls, the presence of blood stains, and bloody vaginal discharge. 54. The absence of consent is evident from the violent circumstances under which the act occurred, including assault, restraint, and the complainant’s cries for help. The injuries sustained and the bloodstained clothing produced in evidence further corroborate her testimony. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4598/eng@2026-04-09 6

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55. As regards identification, the complainant testified that although the incident occurred at night, there was electricity light at the drinking den where she interacted with her four assailants, and that she had prior familiarity with the assailants. Both Appellants admitted knowing the complainant. The complainant spent considerable time with the assailants prior to the incident and identified them by name and alias, demonstrating recognition rather than mere identification. 56. Further, the 1st Appellant admitted being present at the scene and alleged that the 2nd Appellant and another person raped the complainant, thereby placing himself at the scene. 57. Additionally, a mobile phone recovered at the scene was traced to the 1st Appellant, lending further corroboration to the prosecution’s case under the doctrine of recent possession as articulated in Malingi v Republic [1989] KLR 225. 58. In totality, this Court is satisfied that the prosecution proved the ofience of gang rape against the Appellants beyond reasonable doubt. Whether the Prosecution Evidence was Fraught with Contradictions and Inconsistencies 59. It is trite law that minor inconsistencies do not necessarily vitiate a conviction. In Philip Nzaka Watu v Republic [2016] eKLR, the Court of Appeal held that only material contradictions that go to the root of the case are fatal. 60. Although the Appellants alleged that the prosecution evidence was riddled with inconsistencies, they failed to point out any material contradictions. This Court has independently reviewed the record and finds no inconsistencies that would undermine the core of the prosecution’s case. Whether the Prosecution Failed to Call Essential Witnesses 61. Section 143 of the Evidence Act (Cap 80, Laws of Kenya) provides that no particular number of witnesses is required to prove a fact. The prosecution is only required to call such witnesses as are sufficient to establish its case. 62. While Bukenya v Uganda [1972] EA 549 holds that failure to call a material witness may justify an adverse inference, the Appellants did not specify which essential witnesses were omitted or how their absence prejudiced the case. 63. In the absence of such demonstration, this ground of appeal is without merit. Whether the Appellants’ Defence was Rejected Without Proper Consideration 64. The law is settled that a trial court must consider the defence alongside the prosecution’s case and give reasons where it rejects it, as stated in Okeno v Republic [1972] EA 32. 65. In the present case, the Appellants’ defenses consisted largely of denials and allegations of being framed. The 1st Appellant’s defence was internally inconsistent and, notably, placed him at the scene while attributing the ofience to the co-accused. The 2nd Appellant’s alibi was unsubstantiated. 66. The trial court considered these defenses but found them unconvincing in light of the cogent prosecution evidence. There is no indication that the defenses were disregarded; rather, they were duly evaluated and rejected on sound grounds. 67. In the result, this Court finds that the appeal lacks merit and is hereby dismissed in its entirety. DATED, SIGNED AND DELIVERED AT LODWAR THIS 9TH DAY OF APRIL 2026 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4598/eng@2026-04-09 7

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PATRICK J O OTIENO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4598/eng@2026-04-09 8

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