Henry Kipsugu Tarus v Republic

4. The trial court considered the evidence of 5 prosecution witnesses and found the accused guilty of the offences of robbery with violence and rape. Upon conviction the accused was sentenced to serve 50 years imprisonment and 10 years imprisonment on count No. 2. 5. Being dissatisfied with the conviction and sentence by the trial court the Appellant preferred this appeal. The appeal in 14 grounds of appeal on charge of robbery with violence and 7 grounds on the charge of rape. The said grounds can be summarized as follows: Grounds of appeal on the charge of robbery with violence a. That the trial magistrate erred in law and fact by failing to note that the prosecution side failed to prove their case beyond reasonable doubt. b. That trial magistrate imposed an unusually excessive sentence on him of 50 years offending the principles of mitigation and proportionality and life expectancy of 70 years considering the appellant is aged 44 years. c. That the Honourable trial magistrate erred in law and fact by convicting and sentencing the appellant on the basis of a defective charge sheet. d. That the trial magistrate erred in law and fact by charging the appellant both with a capital and non-capital offence simultaneously in one charge sheet and pronouncing sentence on each count instead of holding the sentence on the non-capital offence (rape)in abeyance. e. That the learned magistrate erred in rejecting the Appellant’s defence. f. That the learned magistrate erred in law and fact by convicting and sentencing the appellant without taking into account 8 months he spent in pre-trial custody pursuant to Section 333(2) of the CPC. Grounds of appeal on the charge of Rape a. That the trial magistrate erred in law and fact in convicting and sentencing him when it was held this case had been proved beyond reasonable doubt. b. The learned trial magistrate erred in law and fact in not resolving the inconsistencies and contradiction as to the fact that the complainant was raped both on the vagina and anus which was not corroborated by a medical doctor. c. That the learned magistrate erred in law and fact by imposing harsh sentence on him without considering the mitigation on record. 6. PW1, the complainant stated she hails from Ziwa and she is a farmer. On 23/12/2022, PW1 stated, she was alone. Her house, PW1 stated, is two roomed and has electricity. She saw some light and realized it came from a torch. She also saw the accused and he told her he could kill her and she grabbed his hand. The appellant had a knife, PW1, stated and he ordered her up the bed, to remove her clothes and used his knife to tear her clothes. PW1 also stated the appellant ordered her to turn her stomach down and give him some money .PW 1, further, stated she picked Ksh.21,000 from her drawers and another Ksh.1,000 on top of her cabinet and gave the accused. Thereafter, PW stated, the appellant took her to the bed and had sex with her. PW1 stated the a raped her at 4:00 am. PW1 also stated that the appellant ordered her to bend and had sex with her on the anus. 7. When the accused went out, PW1 stated, she realized her door had been hit with a stone and she called her son’s wife’s son and told him Tarus raped her. PW1, further stated, the appellant worked for her neighbour as a herd’s boy. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13137/eng@2026-07-13 2

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8. PW2, further, stated she was taken to an hospital in Ziwa where she was treated and referred to Moi Teaching and Referral Hospital for further treatment as she was injured on her private parts. She also reported the matter at the police station and the appellant was arrested. 9. PW1, further, stated she had known the appellant for 8 months and that he had 3 trousers which he removed to the knee level and that the outer one had elastic waist band. She also stated she did not scream because the accused threatened to kill her. 10. On cross-examination PW1 stated the incident herein occurred at 2.00 am and that she was alone in her house. She also stated that the appellant wore a white jumper and black jacket. 11. PW2, Dr. Irene Simiyu produced the complainant’s P3 form dated 23/12/2023(P.Exhibit -3 and stated that the appellant’s Out-patient Department No. was 03781312. PW2 also states the complainant had fresh tears on the clitoris and her labia minora had lacerations. 12. PW3, Caroline Jepchumba Jemutai hails from Kaptich and she is a farmer. She is the complainant’s neighbour.PW3, states, she was at home with her child aged 3 years and accused, Tarus called her name Mama Jeru. He had a knife and a rod and saw him next to her bed, PW3 stated, and he told her she her house was left open at around 2am. On cross-examination, PW3, stated she does not know how the appellant entered her house and that he had a phone with a torch. She also stated the accused dressed in a jumper. 13. PW4, Julius Keiyo, hails from Kaisagat and he is a farmer and hawker. He stated he knows the complainant. She is their neighbour.PW4 also stated PW3 is married to her brother. PW4, further, stated that the appellant worked under him herding his cows. He worked for 5 months. His last day of work was 22/12/2022 and on 23/12/2022, PW4, the accused disappeared. On 23/12/2023 at 4:00 am, PW4 stated, he was called by Abraham Kimei, the complainant’s son who stated the accused had disappeared 14. On cross-examination, PW4 stated the accused was employed by his brother Amos but his answerable to him. He was not sacked. 15. PW5 No. 56662 PC Rosemary Ndiema produced photos of the scene P. Exhibit 3 (a) – (g). They show a huge stone which was used to break the complainant’s door. 16. In his defence, the appellant stated he hails from Laikipia and he is a farmer. In May while he worked for Amos Kiplagat, PW1 stated, a phone was lost by Amos mother together with money and he was asked about it but he not not see the money and phone. On 10/12/2022, the appellant stated, he was called by Moses who notified him that he wanted to suspend him. On 11/12/2022, the appellant stated, Amos sent him some money and told him to go home. The appellant, further, stated he went to Laikipia till February, 2022 when he was arrested by police from Laikipia and taken to Ziwa,Eldoret.He also denied committing the alleged offences herein and stated that he was fixed due to the loss of a phone as Julius(PW4) had promised to ensure he paid for his mother’s phone. On cross-examination he stated he was not near the scene of crime on the fateful date. 17. The issues for determination by the court are: a. Whether the appellant committed the offence of robbery with violence against the complainant. b. Whether the offence of rape against the appellant were proved herein. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13137/eng@2026-07-13 3

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18. In 1st appeal this court has jurisdiction to revisit the evidence tendered in the lower court afresh, evaluate the same and come to own conclusion, bearing in mind that the lower court had the advantage of observing the demeanour of witnesses and give due allowance to that. (see Mark Oiruri Mose -vsRepublic (2013)eKLR) 19. Section 296(2) of the Penal code proves that: “ If the Offender is armed with any dangerous or offensive weapon or instrument or in the company with one or more other person or persons in it, at or immediately before or immediately after time of robbery, he wounds, beats, strikes or by any other personal violence to any person, he shall be sentenced to death.” 20. PW1, the complainant testified that on the material date at 2:00 am, she was sleeping alone in her tworoomed house. She heard some sound and saw some light. She realized the light was from a torch and she saw the appellant. He had the torch and armed with a knife, PW1 stated and he threatened he would kill her. Thereafter, PW1 stated, the appellant ordered her on the bed and used the knife he had to tear off her clothes. The appellant also ordered her to lie down on her stomach, PW1 stated and to give him money and she gave him a total of Ksh. 22,000. 21. PW1, further, stated that appellant raped her and ordered her to bend and also raped her through the anus. After the ordeal the complainant went out and realized her door had been hit by a huge stone. 22. From PW1’s evidence, there is no doubt the appellant was armed with a knife which is considered to be a dangerous weapon. Secondly, he used personal violence against PW1 through threats of ending her life. 23. On the issue of identification, the court of Appeal in the case of Cleophus Otieno Wamunye -vsRepublic (KLR) 424 held: “ ......where the only evidence against a defendant is evidence of identification or recognition, a trial is enjoined to examine such evidence carefully and to be satisfied that the circumstances are favourable and free from possibility of error before it can safely be the basis of conviction”. 24. PW1 clearly stated she saw the appellant aided by the light from the torch that he had. She also stated that the appellant wore a white jumper and black jacket and wore three trousers and that the outer one had elastic waist band. She had known him for 5 months he worked for her neighbour as a heard boy. 25. PW1 evidence was corroborated by PW3 who testified that she ware neighbours with PW1 and that on the material day she was at home with her child. At around 11.00 pm she heard the appellant call her by name Mama Jeru and saw that he was armed with a knife and rod, while standing next to her bed and he wore black coat and jumper. She also stated that the appellant left her house at 2.00am and that she knew she knew the appellant worked as a herd’s boy. 26. There is sufficient and cogent evidence to establish the robbery with occurred and the appellant was the perpetrator. 27. As regards to the offence of rape, under Section 3(1) of the Sexual Offences Act, the elements of the offence are set out as follows: “ A person commits the offence of rape if https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13137/eng@2026-07-13 4

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a. He or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs. b. The other person does not consent to the penetration or c. The consent is obtained by force. 28. From the evidence of PW1 there is no doubt that she did not consent to have sexual intercourse with the appellant. In fact, the appellant used the knife that he had to tear her clothes off thereafter, the appellant raped the complainant all while threatening to kill her.The evidence of PW1 is corroborated by the evidence of PW2, Dr. Simiyu, who examined PW1 testified that PW1 had fresh tears on her clitoris, the labia minora was lacerated and she had pain in her vagina and approximate age of history was one (1) day. 29. The Court also finds that the appellant’s defence of alibi is weak and unfounded. 30. The appellant was sentenced to serve 50 years imprisonment for the offence of robbery with violence and 10 years sentence for rape. In his grounds of appeal the appellant averred an sentence of 50 years imposed on him is unusually excessive and offends the principles of mitigation and proportionality considering life expectancy of 70 years and he is aged 44 years. On the other, the prosecution submitted that appellant perpetuated the most heinous act on a very vulnerable person leaving a lasting impact on her. The prosecution, therefore, urged the court to impose a deterrent sentence as a warning to other men. In this regard, the prosecution urged the sentences meted on the appellant herein are appropriate and proportionate. This court agrees with submissions by the prosecution and declines to interfere with sentences meted on the appellant by the trial court expect to order that both sentences shall run concurrently. 31. The upshot of my findings above is that this appeal lacks merit and the same is dismissed. Right of appeal within 14 days. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS THIS 13TH DAY OF JULY 2026. HON. P. K. ROTICH JUDGE In the presence of: M/s Muriithi for DPP Accused: Present https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13137/eng@2026-07-13 5

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