Muramba v Republic [2023] KEHC 24626 (KLR)

Muramba v Republic (Criminal Appeal E084 of 2022) [2023] KEHC 24626 (KLR) (27 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24626 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Appeal E084 of 2022

A. Ong’injo, J

October 27, 2023

Between

Mathias Nyule Muramba

Appellant

and

Republic

Respondent

(Being an appeal against the judgment of Hon. C. K. Auka (SRM) delivered on 11th October 2022 in Kwale Senior Principal Magustrates Court S. O. Case No. 42 of 2020, Republic v Mathias Nyule Muramba)

Judgment

Background 1. The Appellant, Mathias Nyule Murambawas charged jointly with others with the offence of gang defilement contrary to Section 10 of the Sexual Offences Act No. 3 of 2006.

2. Particulars were that Mathias Nyule MurambA on diverse dates between 26th day of June 2020 and 9th July 2020 in Diani Location of Kwale County within Coast Region unlawfully and intentionally caused your penis to penetrate the vagina of MMN.

3. In the alternative, they were also charged with indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act.

4. In Count II, the appellant was charged with the offence of abuse of position of authority contrary to Section 24 (4) of the Sexual Offences Act.

5. In Count III, the three accused persons were charged with the offence of wrongful concealing of the abducted person contrary to Section 261 of the Penal Code.

6. The appellant was found guilty of the offence of defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act. He was convicted and sentenced to serve 10 years imprisonment. He was acquitted of the offence in Count II and for Count III, the three accused persons were found guilty of the offence of unlawful confinement contrary to Section 263 of the Penal Code instead of the offence of wrongful concealing abducted person. For the offence under Section 263 of the Penal Code, each of the accused persons was fined Kshs. 14,000 or one year imprisonment.

7. The appellant was aggrieved by the decision of the trial court and filed the petition of appeal dated 21st October 2022 on the following grounds: -1. That the learned trial magistrate erred in law and fact by proceeding to convict the appellant on a charge of defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act upon making a finding that the prosecution had failed to prove Count I of the charge sheet.2. That the learned trial magistrate erred in law and fact by convicting the appellant of the offence of unlawful confinement contrary to Section 263 of the Penal Code.3. That the learned trial magistrate erred in law and fact by disregarding the appellant’s defence with the charges he was charged with in the trial court.4. That the learned trial magistrate erred in law and fact by being openly partial in the trial of the appellant.5. That the learned trial magistrate erred in law and fact in condemning the appellant to a harsh sentence in the circumstances of the case.

Prosecution’s Case 8. PW1, MMN, the complainant herein underwent voire dire examination and gave sworn statement that on 26. 7.2020 at 4. 00 pm, he left home because of issues that her parents had at home and that she wanted to leave because she was under stress. That on the way, she met Mathias and Brian but she did not know them before. That the two approached her and introduced themselves. That she told them she had nowhere to go and that it was around 4. 30 pm. That they asked her to join them for a walk. That they went to a single-roomed house in Kona ya Musa and she was told it belonged to Jonathan. That when they entered the house, the 2 left and they did not tell her where they were going. That they locked the door from outside using a padlock and that they returned at 8. 00 pm together with Jonathan. That after eating the three left and that she slept on the bed alone. That they returned in the morning, sat and talked and that the locked the door and left and that she was locked inside the house. That she asked them for their phone so that she could talk to her parents or allow her to go home but they never responded to her and that they left and returned at 6. 00 pm.

9. PW1 testified that whenever she wanted to attend to a call of nature, she could tell them and they took her outside the house. That on the 2nd day, Jonathan and Bryan left the house and she was left with Mathias. That Mathias forced her to have sex with him and that she told him that if she did not want, he would lock her outside or kill her. That they did not use protection and that she bled from her vagina and there was blood on the bed. That Mathias wiped blood on Jonathan’s bed and that she slept on the sofa and Mathias slept on the bed. That she had sex with Mathias 4 times on different dates. That on her last day in the house at around 6. 30 pm, she was with Mathias who was watching TV and they heard a knock on the door and that people whom she recognized as church members entered. That they took her and Mathias to the police station and later to Msambweni Hospital for examination.

10. PW2, MO, testified that the complainant is her daughter and she was 16 years old and had a copy of her birth certificate. She said that on 25. 6.2020, she was at home with PW1 and that she had a phone which she could use for her online classes. That at 11. 00 am, she took the phone and started chatting for long and that PW2 snatched the phone from her. That later in the evening, thay sat her down and talked to her about chatting for long on phone. That on the following day, she was okay and she prepared lunch. That she asked PW2 if she could go to Naivas to window-shop for her birthday cake but PW2 restrained her and asked her not to go as they had planned to go there the following day.

11. PW2 said that she called her father on phone and spoke to PW1 and they agreed that she should not go to the supermarket on that day. That at 3. 00 pm, PW2 realised that PW1 was leaving the house from the backdoor and she was carrying a clutch bag. That PW2 tried to call her but she did not respond. That PW2 called her father and informed him that PW1 said she was going to Naivas. That they waited for her but she did not return and that they also tried to search for her but did not find her. That on 28. 6.2020 at around 11. 00 am, they reported the matter of a missing person at Diani Police Station and they were asked to keep vigilant so as to know where she could be. That she informed her school principal and church members as well as her prayer group. That they were informed that she had been seen at the beach jogging so they used to go to the beach with her photograph and ask people to report in case they saw her.

12. PW2 said that they looked for her for almost one week. That on the day she was found, they had gone to church on 9. 7.2020 when they divided themselves with other prayer members with the mission of looking for her. That one of the women in the group called her on phone and asked her to join them since they had seen her. That when they got to the scene, PW1 had been rescued by the women and that the assailant had been arrested and taken to the police station. That PW1 told her that she had been defiled by DW1. That PW2 recorded her statement with the police and that they also went to hospital where PW1 and DW1 were examined. That she later learnt that DW2 and DW3 stay in the same house with DW1.

13. PW3, MWN said that PW2 was her neighbour and that they fellowship in the same church. That on 4. 7.2020, PW2 went to her house but she did not find her. That when PW3 got home, she went to PW2’s home and PW2 told her that her daughter PW1 had gone missing and requested if she could assist in tracing her. That she told PW3 that she heard PW1 was seen at the beach jogging. That they asked some young men the time which people go to the beach and they started going to the beach at 6. 00 am to look for her. That they also heard that she had been seen at Kona Musa market buying potatoes. PW3 said that they finally found her on 9. 7.2020.

14. PW3 said that they were in their usual mission of looking for PW1 and had divided themselves into groups. That they carried PW1’s photographs to show people and confirm if they had seen her. That they found one gentleman who upon seeing the photograph directed them to a house which was a single room and upon peeping through the curtain, they saw PW1 watching TV and there was another brown gentleman scrolling the phone. That they were 5 and they surrounded the house so that PW1 could not run away. That PW3 called PW2 to go to where they were and that PW3 personally entered the house and found DW1. That DW2 and DW3 were not in the house.

15. PW4, HIM, testified that she knew PW2 and that they fellowship together in the Catholic Church and that they are in the same prayer group. That PW2 called her on 28. 6.2020 and informed her that PW1 had gone missing for 2 days and that PW4 told her that they would pray over the issue. That PW1 was 16 years and a student at [Particulars Withheld] Girls Secondary School. That PW4 used to pass by PW2’s house to find out if PW1 had been found. That on 8. 7.2020, they started a WhatsApp group for their prayer cell and asked members to help in the search for PW1. That they divided themselves into different groups and PW4 was assigned the evening group to look for PW1. That they used to search for PW1 while carrying her photograph. That on 9. 7.2020, they again went to look for PW1 and that they were 5 in number. That they met a young man whom they showed the photograph and he directed them to the house where she was. That when they got to the house, they peeped and found PW1 with DW1. That they called fellow members and informed them that they had found PW1. That they entered the house, it was a single room and PW1 was seated on the chair watching TV while DW1 was on the bed. PW4 said that she did not know DW2 and DW3 and only saw them at the police station.

16. PW5, No. 100220 PC Radhia Abdalla, the Investigating Officer said that on 10. 7.2020, he received a call from the OCS Mr. Wanjala that there were two prisoners held in custody. That PW5 received a call at about 9. 00 am and informed that one of the prisoners was the complainant and the other the accused. That the two had been taken in on 9. 7.2020 by members of the public. That the lady in the cell was a minor as her mother had carried her birth certificate and that a report of a missing person had earlier been made by the mother. That PW5 took the minor to the office and interrogated her and that the minor told her that on 26. 6.2020, she left home since she had issues with her parents concerning a phone. That she boarded a tuk tuk and alighted at the beach road where she met two people, DW1 and his cousin DW2. That they introduced each other and they asked the minor where she was from and she told them she was from her friend. That the minor accompanied the two and they proceeded to their other cousin, DW3. That it was DW1 who intimated that they go to DW3’s house who was at work. That they prepared supper and ate and that the minor slept on the bed while DW1, DW2 and DW3 slept on the sofa.

17. PW5 said that on 28. 6.2020 after supper, DW1 was left to sleep in the room with the minor while DW2 and DW3 went to sleep in another room. That on that night, DW1 had sex with the complainant severally and that she was afraid of going back home since she had left without informing them. That the DW1 and the complainant were arrested by members of the public on 9. 7.2020. That PW5 then escorted DW1 and the complainant to Msambweni Hospital where they were examined. That DW1 told PW5 that he met the complainant at Beach Road while he was with DW2. That the complainant told them she had nowhere to go and that she was over 18 years. She preferred charges against the 3 accused persons and charged DW1 for the offence of defilement as he engaged in sex with the complainant. PW5 produced the birth certificate as PExh – 1.

18. PW6, Dr. Ibrahim Hassan Mwasia from Msambweni County Referral Hospital said that he received a report on 10. 7.2020 and that the complainant was taken in by the police officer together with one Mathias. That PW6 was the first person to examine them and that he had the P3 Form and treatment book for the complainant. That the complainant said that she had been defiled. That she had gone missing and was later found at Mathias’ home. That PW6 examined her vagina and that her hymen was absent. That there were no bruises but there was whitish discharge. That she was sent to the laboratory, results were availed to PW6 and he filled the PRC Form filled on 10. 7.2020. That there was no use of protection, she was not pregnant, she was calm, the state of her clothes were intact with no stains, and she had not taken a bath yet, and the outer genitalia was normal and intact.

19. DW6 said that they did not give her PEP since 72 hours had lapsed since the first sexual contact. That no treatment was given for STI since she did not have any signs but she was treated for UTI and candidiasis. That he filled and dated the P3 Form as well. PW6 concluded that there must have been penetration although it was not forced since there were no tears or bruises or lacerations. He also said that urinary tract infection is not a sexually transmitted infection but in rare circumstances, it can be passed through sexual intercourse. That normally it is caused by failure to observe hygiene. PW6 produced the complainant’s treatment book as PExh – 2, the P3 Form as PExh – 3, the laboratory request and report forms as PExh – 4, and the PRC Form as PExh – 5.

Defence Case 20. DW1, Muramba Nyule Mathias, gave sworn evidence that he knew the complainant in this case and that they met in Ukunda area and when they spoke she told him that she had a problem and asked him if he could assist her. That she did not have a place to go as she used to stay with her friend at the beach area and the said friend had locked the house and gone to visit her boyfriend. DWI said that he was from Kikononi and had gone to visit his cousins i.e. Jonathan and Brian. That since the complainant told them that she did not have a place to go, they assisted her. That they gave her a place to sleep and when they tried to interrogate her, she told them that her parents lived in Bamburi but she did not want to go back to Bamburi. That DW1 went to see the head teacher to update professional records and when he returned after 3 days, he found the complainant was still in the house.

21. DW1 said that they used to leave the key at a place where they could all access it. That he first met the complainant on 2. 7.2020 and that she stayed in the house for 4 days. That DW3 would leave for work most of the time while DW1 remained with the complainant. That when DW1 interrogated the complainant, she told him that she was M, that she was 19 years old and was about to join college having completed her secondary education. DW1 said the house was a single room and that the 2nd accused opted to sleep in his room which was separate. That they had a sofa set and bed in the house and that the complainant used to sleep on the sofa set while DW1 would sleep on the bed and DW2 and DW3 used to sleep in the other room.

22. DW1 testified that it is not true that he slept with the complainant. That she told him that she had a boyfriend called Dete and sometimes used his phone to text the boyfriend. That if at all she was defiled then it was Dete who defiled her. That it was not true that they used to lock the complainant inside the house and leave for the day. That they allowed the complainant to stay with them since she had nowhere to go. DW1 said that they were only assisting her with a place to sleep. That he asked her for her for her parent’s phone numbers but she declined. That it would not have been possible for her to stay in the house without going for a call of nature and that they assisted her out of good will.

23. DW2, BSN testified that he lived in Diani and that he knew the complainant in this case and that they met her on the way. That it was in the evening when he was in the company of DW1. He said that they were strolling along beach road when they met the complainant. That they greeted her and she responded and that they introduced each other. That she looked confused and told them that she lived in Bamburi but she was now staying with her boyfriend whom she did not know where he had gone. That since it was late, they decided to take her to their house where they interrogated her and she told them that she had gone to Ukunda to look for a job but she did not find her friend. That when she went to her friend’s house, she found that the friend was not there and the door was locked.

24. DW2 said that they lived in a single room and they had neighbours whom they shared a latrine with. That they told the complainant that they had assisted her that night and they wanted to know if she had parents but she said her parents had difficulties and she did not want to go to them. That DW2 and DW3 had separate rooms and since the complainant was a stranger he decided to stay with DW3 in his room. That DW2 rarely went to DW3’s house and only did so in the evening during supper. That it was DW1 who was in constant communication with the complainant and that DW1 was called to his place of work and returned after 2 days. That on return of DW1, he was arrested on allegations that he had been found with the complainant. It is not true they used to lock the complainant in the house.

25. DW3, JHM testified that DW1 and DW2 were his cousins and that he knew the complainant after she had met DW1 and DW2. He said that he left work for home at around 7. 00 pm and when he arrived home he found DW1 with the complainant. That he left them and went to the gym after introducing himself to the complainant. That on the next day, he still found the complainant in his room and he did not sleep there and did not ask why she was there. That DW1 and the complainant left on the 3rd day and he thought they could not come back. That when they returned, he realized that people had gone to arrest DW1. That his landlord and neighbours were present and he was told that DW1 was found with the complainant who was a minor. That DW3 did not question the complainant so much because she was with DW1 and before the complainant went to the house, he lived with DW1. That upon her arrival, DW3 took her clothes and went to stay at DW2’s house. That DW3 used to leave the house key the 1st and 2nd accused person and that he had a place where he used to keep the key and that one of the neighbours also knew where the key was kept.

26. This appeal was canvassed by way of written submissions.

Appellant’s Submissions 27. The appellant’ advocate, Mr. Lewa, submitted that the trial magistrate did not specify the section under Criminal Procedure Code which the appellant was convicted for an offence which he had not been charged. He submitted that the omission violates Section 169 of the Criminal Procedure Code and it is fatal to the appellant’s conviction and the conviction should be quashed and sentence set aside.

28. Further, it was submitted that the complainant came up with the allegations for defilement and that she was wrongfully confined by the accused persons after running away from her home in a bid to play victim is that she is spared from being reprimanded by her parents due to her wayward behavior. The appellant’s counsel contended that the appellant ran away after differing with her mother and that the account of what transpired after she was found in a room with the appellant by PW3 and PW4 differs in regard to whether the search party had a meeting with her prior to proceeding to the police station.

29. The appellant’s advocate queried what was the purpose of the meeting, what was discussed in the meeting and whether the complainant was coerced and coached into implicating the appellant and his two co-accused. It was concluded by the appellant that if the meeting was not for a sinister motive, PW3 and PW4 would not have given contradicting answers when they had a meeting with the complainant prior to going to the police station. The appellant drew the conclusion that the complainant was locked at Diani Police Station for one night to coerce and/or compel her to implicate the accused persons.

30. The appellant further argued that PW6, Dr. Ibrahim Hassan Mwasia, said he could not conclusively say there was sexual intercourse and that there was therefore no corroboration of PW1’s evidence that she was defiled. The appellant relied on the authority of John Mutua Munyoki v Republic (2017) eKLR, where it was held that in order for the offence of defilement to be committed, the prosecution must prove each of the ingredient beyond reasonable doubt.

31. The appellant’s advocate also argued that the trial magistrate relied on the evidence of PW1 pursuant to Section 124 of the Evidence Act without complying with the mandatory provisions of the proviso thereto and without giving reasons for believing that PW1 was telling the truth. The case of Arthur Mshila Manga v Republic (2016) eKLR was sited where it was held that before the court can convict on the evidence of a victim pursuant to the proviso of Section 124 of the Evidence Act, it must first believe or be satisfied that the victim is telling the truth and secondly, it must record the reason for such belief. It was therefore argued that failure to comply with the mandatory provisions to the proviso of Section 124 of the Evidence Act was fatal.

32. In regard to ground 3 where the appellant claimed that his defence was not taken into account, it was submitted that the complainant made the appellant to believe that she was 19 years and that she had completed her secondary education and she believed her. That the evidence was corroborated by the evidence of the 3rd accused person that the complainant was big bodied and estimated her age to be 19 years. He relied on the holding in Eliud Waweru Wamboi v Republic (2019) eKLR where the Court of Appeal held as follows: -“We think also that it stands to reason that a person is more likely to be deceived into believing that a child is over the age of 18 years if the said child is in the age bracket of 16 to 18 years old, and that the closer to 18 years the child is, the more likely the deception and the more likely the belief that he or she is over the age of 18 years.”

33. It was argued that it was incumbent upon the court to make a finding on the defence tendered by the appellant in regard to how PW1 presented herself to be an adult and carried herself as such as she met the appellant and his co-accused and during her stay with them. It was also the appellant’s contention that the trial court rejected the appellant’s defence without indicating that it was considered in any way or at all. The appellant’s counsel concluded that the conviction of the appellant for the offence of defilement was unsafe and should be quashed and sentence set aside.

34. Concerning the conviction for the offence of unlawful confinement contrary to Section 263 of the Penal Code instead of the offence of wrongful concealing abducted person, the appellant’s counsel argued that it should be quashed because the credibility of PW1’s evidence is highly suspect and it is doubtful that she was confined in a room as she alleged because PW2 in her statement said “we were informed that she had been seen in a beach jogging so we used to go to the beach with a photograph and ask people to report in case they saw her”. PW3 was also said to have reiterated the same story and said they used to go to the beach at 6. 00 am to look for the complainant who had been seen at Kona Musa market buying potatoes. The testimonies of PW2 and PW3 was said to have discredited the evidence of the complainant that she was confined in a room. Counsel argued that the court failed to give regard to the evidence of PW2 and PW3 when it convicted the appellant and his co-accused.

Respondent’s Submissions 35. The respondents on their part submitted that the ingredients of the offence of defilement were proved and that PW1 testified that the 1st and 2nd accused persons did not tell her where they were going when they locked the door. The respondent also submitted that appellant admitted that he met the complainant at Ukunda area and that he slept with the complainant in the same house and therefore placed himself at the scene of crime. It was argued that the appellant’s defence was a mere denial which was unsubstantiated and could not be believed.

36. On whether the trial court was partial, the respondents submitted that there was no evidence in the entire record that suggests that the trial court was biased against the appellant.

37. On whether the sentence was harsh, the respondent submitted that sentencing is at the discretion of the court and the sentences are lawful and should not be interfered with.

Analysis and Determination 38. This being the first appellate court, it is guided by the principles in David Njuguna Wairimu v Republic [2010] eKLR where the court of appeal held: -“The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”

39. After considering the grounds of appeal, records of the trial court and submissions by the appellant and the respondent, the issues for determination are: -1. Whether the finding by the trial magistrate that the appellant was guilty of the offence of defilement under Section 8 (4) of the Sexual Offences Act and unlawful confinement under Section 263 of the Penal Code was proper.2. Whether the trial magistrate considered the appellant’s defence3. Whether the trial magistrate was partial in her conduct of the trial4. Whether the sentence was harsh and excessive in the circumstances

Whether the finding by the trial magistrate that the appellant was guilty of the offence of defilement under Section 8 (4) of the Sexual Offences Act and unlawful confinement under Section 263 of the Penal Code was proper. 40. Section 179 of the Criminal Procedure Code provides: -When a person is charged with an offence consisting of several particulars, a combination of some only which constitutes a complete minor offence and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.

41. Section 10 of the Sexual Offences Act provides: -Any person who commits the offence 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 offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less fifteen years but which may be enhanced to imprisonment for life.

42. Section 8 (4) of the Sexual Offences Act provides: -A person who commits an offence with a child between the age of 16 and 18 years is liable upon conviction to imprisonment for a term of not less than 15 years.

43. It is obvious that facts which were proved by the prosecution did not prove the offence of gang rape because it is only the appellant who was found to have had sexual intercourse with the complainant while occupying a room that was exclusively left for him and the complainant. The 2nd and 3rd accused persons did not take part, they were not present and had no intention of having sexual intercourse with the complainant.

44. Considering that the 2nd and 3rd accused persons were not found guilty for the offence of gang rape in Count I, it was not logical to find them guilty for the offence of unlawful confinement of the complainant when it was confirmed that the complainant was found watching TV in a one-roomed house while in the company of the appellant. It is not in doubt that the appellant had sexual intercourse with the complainant during their period of cohabitation from 26th June 2020 to 9th July 2020.

Whether the trial magistrate considered the appellant’s defence 45. The appellant raised defence under Section 8 (5) of the Sexual Offences Act. This court has perused the judgment of the trial court and it is true that nothing is said about the defence that was raised by the appellant and which was corroborated by the 2nd and 3rd accused persons.

46. PW2 testified that the complainant was her daughter and she noticed that they used to chat for long on a phone that was used for online classes and they snatched it from her on 25th June 2020. That on 26th June 2020, the complainant requested if she could go to Naivas and do window shopping for her birthday cake but she was restrained from going because PW2 was to go the following day. That the complainant’s father spoke to her on phone and it was agreed that she should not go to the supermarket the following day. That at 3. 00 pm, PW2 realised that the complainant was leaving through the back door and she tried to call her but she did not respond. That they searched for her but she did not return on that day and a report of a missing person was made on 28th June 2020. PW2 was assisted by members of her church to trace the complainant after they got information that she was seen at Kona ya Musa Market.

47. From the PRC Form, it is indicated that the person who had sexual intercourse with the complainant was her boyfriend. It cannot therefore be true that the complainant left home against all odds and met two young men who are unknown to her and went on to cohabit with them. She must have been chatting with the appellant and that led to the snatching of the phone by PW2. There is no explanation given as to how she was seen jogging at the beach and at the market if it is true that she was indeed locked in the house by the appellant. She does not explain how she was comfortably watching TV if she was confined against her will and was in distress. The complainant said that the women who went looking for her knocked and opened the door and entered. There is no evidence that the door was locked.

48. The defence by the appellant and his co-accused that the complainant told them that she was an adult and was waiting to join college coupled with the conduct of the complainant makes this court find that there was some credibility in the defence.

Whether the trial magistrate was partial in her conduct of the trial 49. The issue of partiality was not proved because there is no evidence that the trial magistrate knew either the complainant or the appellant.

Whether the sentence was harsh and excessive in the circumstances 50. The appellant was sentenced to serve 10 years imprisonment for an offence that would have attracted up to 15 years imprisonment. The trial magistrate exercised her discretion to settle for a lesser period of time. Had this court found that the appellant’s defence was not valid, it would not have interfered with the sentence. However, this court finds that the defence by the appellant was valid and raised doubts in the prosecution’s case and therefore find that the appeal has merit, the conviction on the offence of defilement under Section 8 (2) of the Sexual Offences Act and unlawful confinement under Section 263 of the Penal Code is hereby quashed and sentences for the appellant and his co-accused set aside.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 27TH DAY OF OCTOBER, 2023. HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for the RespondentMs. Katana Advocate H/B for Mr. Lewa Advocate for the AppellantAppellant present in person virtually from Shimo la TewaHON. LADY JUSTICE A. ONG’INJOJUDGECourt: Copy of charge sheet to be supplied upon payment of copying charges by the appellant counsel. Copy to the Respondent.HON. LADY JUSTICE A. ONG’INJOJUDGE27. 10. 2023