Wafula & another v Republic [2022] KEHC 13822 (KLR)

Wafula & another v Republic (Criminal Appeal 57 & 58 of 2021 (Consolidated)) [2022] KEHC 13822 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13822 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal 57 & 58 of 2021 (Consolidated)

DK Kemei, J

October 7, 2022

Between

Robert Makokha Wafula

1st Appellant

Morris Norman Muchonji

2nd Appellant

and

Republic

Respondent

Judgment

1. Both appellants herein Robert Makokha Wafula and Morris Norman Muchonji were tried and convicted of the first count namely robbery with violence contrary to section 296(2) of the Penal Code. Further, the second appellant Morris Norman Muchonji was found guilty and convicted for the second count of an offence of grievous harm contrary to section 234 of the Penal Code while the 1st appellant was convicted for the third count of rape contrary to section 3)1) as read together with section 3(3) of the Sexual Offences Act.

2. Under count I, the particulars of the offence were that Morris Norman Muchonji and Robert Makokha Wafula on August 24, 2015 at 0200 hours in Bumula sub-county within Bungoma county jointly robbed JEK of Kshs 700/=; a bag of maize valued atKshs 2000/= and immediately at the time of such robbery, beat and wounded JEK.

3. Under count II, the particulars of the offence were that Morris Norman Muchonji and Robert Makokha Wafula on August 24, 2015 at 0200hrs in Bumula sub-county within Bungoma county jointly did grievous harm to SWM.

4. Under count III, the particulars of the offence were that Robert Makokha Wafula on August 24, 2015 at 0200 hours within Bungoma county intentionally and unlawfully caused his penis to penetrate the vagina of JEK without her consent.

5. Having been taken through full trial, they were convicted and sentenced as follows: under count I-15 years’ imprisonment each; under count II-1st accused person -10 years’ imprisonment and under count III-2nd accused person -20 years’ imprisonment. The sentences were ordered to run concurrently.

6. On May 24, 2022 this court consolidated the two criminal appeals namely Bungoma HCCRA 058 of 2021 and HCCRA 057of 2021.

7. Being aggrieved by the convictions and sentences, the appellants lodged the following amended grounds of appeal:i.That the learned trial magistrate erred in law and fact in convicting the appellant based on a defective charge sheet.ii.That the learned trial magistrate erred in law and fact in finding that the appellants were guilty of the offence of robbery with violence contrary to section 296(2) of the Penal Code.iii.That the learned trial magistrate erred in law and fact in finding that all the ingredients of the offence of robbery with violence had been proved against the appellants.iv.That the learned trial magistrate erred in law and fact by convicting the appellants on the basis of inconsistent and contradictory evidence.v.That the learned trial magistrate erred in law and fact by convicting the appellants on evidence of identification by recognition when the circumstances and time could not allow positive identification and/or positive recognition.vi.That the learned trial magistrate erred in law and fact by convicting the appellants without considering their defence.vii.That the learned trial magistrate erred in law and fact in finding that the 1st appellant was guilty of the offence of rape contrary to s3(1) as read together with section 3(3) of the Sexual Offences Act No 3 of 2006. viii.That the learned trial magistrate erred in law and fact in finding that the 1st appellant was guilty of the offence of grievous harm contrary to section 234 of the Penal Code.ix.That the learned trial magistrate erred in law and fact in finding that all ingredients of rape had been proved against the 1st appellant.x.That the learned trial magistrate erred in law and fact by convicting the 1st appellant on insufficient medical evidence.xi.That the learned trial magistrate erred in law and fact in failing to accord the appellants a chance to cross examine the 1stand 2nd appellants hence occasioning a miscarriage of justice.xii.The learned trial magistrate erred in law and fact by convicting the appellants without considering their defence.xiii.The learned trial magistrate erred in law and fact in meting excessive and harsh sentences against the appellants.

8. The case, as presented by the prosecution was that PW1, JEK, the complainant in count I and II testified that she is a businesswoman in Masielo and that she knows the 1st and 2nd appellants as they were her customers. She stated that she knew the 2nd appellant as Morris alias Councilor G alias Shiza, and the 1st appellant as Barasa or Makokha. She testified that on August 24, 2015 at around 2. 00am while in her house she heard a bang on the main door and woke up immediately. The door gave in granting the two access. She raised an alarm immediately. The two men had a torch and shone the light on her and ordered her to remain quiet. The men asked her if she makes changaa and she immediately thought it was the policemen and they told her that they were the police. She quickly dressed up. As she was looking for her blouse she picked up her torch and directed the torch light on their faces and quickly recognized them as the two appellants. The 1st appellant quickly snatched the torch from her hand and hit her with it on the right eyebrow and she screamed. The 2nd appellant hit her with a stick as the 1st appellant ordered her to produce the money she had or die. She told the 1st appellant that she does not have any money as the 2nd appellant person continued to best her up. The 1st appellant joined him in beating her up, hitting her on the head, shoulders and on the hands. She could not bear the pain anymore so she told them to pick the money from a box. She stood up and went to the drawer that had the box, picked up the Kshs 700/=and gave it to the 1st appellant. The 1st appellant started taking her maize bag from the house to outside as the 2nd appellant continued to beat her up pushing her towards the sitting room. She hit her elbow in the process and fell at the door on her stomach but the 2nd appellant turned her upwards, pulled up her skirt and started to caress her private parts while she still had her biker on. He tore apart the biker, unzipped his trouser, removed his penis and inserted it into her vagina. She was weak and in pain that she couldn’t resist. A neighbour approached with a shining torch and the 2nd appellant stopped what he was doing to her and took the maize in a bag. She immediately rushed to the children’s room where she found her daughter Shamilla on the floor bleeding from the head and unconscious. Her neighbor rushed to seek the help of the nyumba kumi elder who came and summoned the village elder and they came to her house while accompanied by the assistant chief. The police were called to help rush her and her daughter to the hospital. On August 27, 2015 the police took her to Bungoma police station where she identified both the appellants in an identification parade. On cross-examination, she told the court that she knew the appellants by their faces and names before the ordeal and that a month prior to the incident she had dealt with them in her maize business. She also told the court that she heard the 2nd appellant informing the 1st appellant that someone was coming before they fled.

9. After a comprehensive voir dire examination was conducted, the trial court was of the opinion that PW2 is a minor of average intelligence but could not understand what an oath and its sanctions are and proceeded to record her unsworn evidence.

10. According to PW2, TW, she recalled that on August 24, 2015 in the night while asleep in their house she heard the door being banged and two people stood by their bed. They had a torch and sticks and she saw the man with a stick ask PW1 if she sells alcohol and when PW1 asked them as to who they were, they told her that they were the police. They switched off their torch light and demanded for money fromPW1or they would kill her. PW1 informed them that she had no money and was beaten up. She told the court that she got to know one of the men as Councilor G, the 2nd appellant who was also referred to as Shiza. She told the court that she saw him when her mother directed the torch light on the two men. She testified that she did not see the second man clearly. She added that PW1 gave them the money but the shorter man continued to beat her as the 2nd appellant took one of the maize bags outside. The man who was beating PW1 made her fall on the door as she screamed and that the 2nd appellant returned to the house and hit S on the head with a stick in the sitting room. On seeing this, i together with the other sibling, Vacase escaped and went behind a posho mill machine. After a short while, they heard the voice of their neighbors and returned to the house only to see S on the floor. The police arrived and took PW1 and S away. She identified 2nd appellant at the police station and further told the court that he used to bring her mother maize for sale and she knew him. On cross-examination, she told the court that she identified the 2nd appellant when PW1 shone the torch light on them.

11. PW3, Joseph Makanga Simiyu, told the court that he is a Mukasa in Masielo village and that he knew the 2nd appellant who comes from his area and that the 2nd appellant comes from a neighbouring village. He recalled on August 24, 2015 at 6. 00 am he received a report from Nyumba Kumi Masielo B that some named suspects had raped and assaulted PW1 and assaulted her daughter. He walked to the house of the 2ndthet appellant 100 meters from his house but did not find him. At 9. 00 am the two appellants were brought to him by nyumba kumi and he directed that they be taken to Kamaiti police post. On cross-examination, he stated that he did not participate in the arrest of the appellants. He also stated that one of the children claimed that the 1st appellant had assaulted and raped one of the victims.

12. PW4, Fredrick Wakasiaka Simiyu, told the court that he was the Mukasa in Kimuwanga village for 11 years and knows both the 1st appellant and PW1. He stated that on August 24, 2018 at 3. 00 am he received a call from PW1’s neighbor that she had been injured and had been attacked. He proceeded to Anarati’s home where he found PW1 and her child crying and that PW1 was pointing to her private part. The police arrived and took both PW1 and her child away and later a jembe and stick were recovered at the scene. At around 8. 30 am, he received a call fromPW1’s husband informing him that PW1 had identified the attackers as Norman Morris Muchonji and Barasa Makokha. He immediately made a request that he arrests the two suspects. He sought the help of the neighbors and they found the 2nd appellant at the home of Anarati taking tea and when confronted with the allegations when he claimed that it was the 1st appellant who was responsible. He let them to the home of the 1st appellant. He also told the court that the 2nd appellant is also known as Councilor G or Mzee. On cross-examination, he stated that the complainants did not mention the name of the 2nd appellant. He also stated that the recovered jembe at the scene was not before the court.

13. PW5, MWW, told the court that he knew the appellants as maize traders at Masielo and that he is the husband of PW1 and the father to PW2. He recalled on August 24, 2015 he received a call from a neighbor who informed him that robbers had invaded his house and that his injured family had been taken to Bungoma General Hospital. He proceeded there and found his wife and child admitted both with injuries. His wife (PW1) informed him that she had also been raped and that the robbers were Mzee the maize man also called Morris Norman Muchonji and Robert Makokha Wafula. He immediately calledPW4 and requested that the two be arrested. He later reported the incident to Kamaiti police station. On cross-examination, he stated that he did not participate in the police identification parade but that his wife did.

14. PW6, Dr Ombongi, of Bungoma county Referral Hospital told the court that PW1 was admitted on August 24, 2015 and discharged on August 27, 2015 with soft tissue injuries secondary to assault. She had a wound on the head which was stitched and her bones in the pelvic region were separated. He produced his discharged summary as pex.7 as well as a P3 form which detailed the injuries consistent with the discharge summary and which were assessed as main because of the separation of the pelvic bones which he stated was a permanent injury that would impact her life. He further produced the discharge summary of PW1 who was admitted on August 24, 2015 and discharged on August 27, 2015 with soft tissue injuries secondary to sexual assault and assault. On vaginal examination, there were lacerations on both labias.PW1 had a cut wound on the scalp which was stitched, given antibiotics and started on PEP for 28 days. Her degree of injury was assessed as harm and her urinalysis showed several epithelial cells and some infections. He further adduced the discharge summary of PW1 and PW7 as pex6 and pex.7 respectively. He produced the two P3 forms for PW1 and PW7 marked as pex8 and pex9 respectively. On cross-examination by the 2nd appellant, he stated that the names of the first complainant are different on the medical documents. On being cross-examined by the 1st appellant, he stated that the appellants did not accompany the victims to hospital. He also confirmed the assault and sexual assault.

15. After a comprehensive voir dire examination was conducted, the trial court formed the opinion that PW7 is a minor of average intelligence but could not understand what an oath and its sanctions are and proceeded direct that she tenders unsworn evidence.

16. PW7, SWM, pointed to the 2nd appellant in court as the person who hit her on the head and between her legs. She told the court that three men came to their house and beat up her mother and that she had not seen the 2nd appellant before. She also stated that it was then dark but that her mother shone a torchlight on the man. On cross-examination by the 2nd appellant’s counsel, she stated that it was at night and it was thus dark. She also stated that she saw the three men whom she had not seen before.

17. PW8, Corporal Jacob Njeru, told the court that at the time of the report of this incident he was stationed at Kimaeti police post. He recalled that on August 24, 2015 at around 4. 10 am he received a report of the robbery incident and proceeded to the scene. On arrival, he found two complainants bleeding from their heads. He stated that the first complainant reported that she had been attacked by two men whom she knew and robbed of Kshs 700/= and one sack of maize. On visiting the scene, he recovered a rungu which he produced as pex1. At Kimaiti police post, PW1 made a formal complaint and indicated that she had been raped by Robert Makokha outside the house and identified the other assailant as Morris Norman Muchonji. Both PW1 and PW7 were escorted to Kimaiti Health Centre where they were attended to and thereafter transferred to Bungoma County Referral Hospital. He stated that the two suspects were arrested by members of the community policing group and that PW 1 and PW7 were issued with P3 forms which were later filled. He stated that after investigations the appellants were charged and that the two were identified in an identification parade. On visiting the scene, he noted the door was broken. He stated that an identification parade was conducted by Inspector Ndungu and that the suspects were positively identified by the two complainants. On cross-examination by the 2nd appellant’s counsel, he stated that he did not take photographs of the scene. He also confirmed that an identification parade was conducted at Bungoma police station following his recommendations.

18. Upon being put on his defence, the 2nd appellant in a sworn statement averred that on August 23, 2015 at 5. 00pm he went to a neighbor’s fundraiser and was treated to some alcohol. He stayed there until 11. 00 pm and proceeded back home to sleep. On August 24, 2015 he went to a neighbor called Anarati and as he took tea, a village elder (PW4) arrived alleging that he witnessed the assault of some individuals and that he accompanies him to the house of the individuals. With the other elders they proceeded to the house and the individual had injuries and claimed the 1st appellant had assaulted him. They proceeded to Masielo APpost where it was alleged that he had participated in attacking PW1 in the night. He denied engaging in maize business. On cross-examination, he stated that he knew the complainant and her home. He also stated that he had no grudge with JEK as he had never quarreled with her

19. The 1st appellant gave an unsworn evidence stating that on August 23, 2015 in the morning PW4 went to his house and arrested him. He was taken to his Mukasa where it was alleged that he had assaulted the Mukasa. He was later taken to Masielo police station where it was claimed that there had been a robbery and since he walks at night he could be involved. He denied the charges but was charged nonetheless.

20. The appeal was canvassed by way of written submissions. It was submitted for the appellants that they were not properly identified by the prosecution witnesses as the circumstances at the time of the offence alleged to have taken place could not allow positive recognition. It was submitted that the prosecution failed to prove that the appellants committed the offence of robbery with violence, rape and the grievous harm as they did not establish the requisite ingredients beyond reasonable doubt to warrant a conviction.

21. The appeal was opposed by the respondent, who argued that the respondent sufficiently proved all the ingredients of the offence of robbery with violence as the same was corroborated. On the offence of rape, the respondent argued that it proved its case beyond reasonable doubt as the testimony of PW1 was corroborated by PW6. On the identification aspect, the respondent argued that PW1 identified the appellants by recognition as she had known them for quite a while. PW2 also identified the 2nd appellant as the man who dealt in maize business with her mother. On the offence of grievous harm, the respondent argued that PW6 established that the injuries suffered by PW7 were serious which will impact her for the rest of her life and as per the report of PW6 that falls within the definition of grievous harm

22. This being the first appellate court, it has a duty imposed on it by law to carefully examine and analyse afresh the evidence on record and come to its own conclusion on the same but always observing that the trial court had the advantage of seeing and hearing the witnesses and observing their demeanor and so the first appellate court must give allowance for the same. This was well put in the well-known case of Okeno v Republic [1972] EA 32 where the court stated as follows:“The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M Ruwala v R (1975) EA 57). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”

Offence Of Robbery With Violence. 23. What constitutes the offence of robbery with violence was well captured in the case of Olouch v Republic(1985) KLR where the Court of Appeal stated as follows: -“…robbery with violence is committed in any of the following circumstances:i.The offender is armed with any dangerous and offensive weapon or instrument; orii.The offender is in company with one or more person or persons; oriii.At or immediately before or immediately after the time of the robbery the offender wounds, beats, strikes or uses other personal violence to any person.”

24. In the case of Dima Denge Dima & others v Republic, criminal appeal No 300 of 2007, it was stated that:“…The elements of the offence under section 296 (2) are three in number and they are to be read not conjunctively, but disjunctively. One element is sufficient to found an offence of robbery with violence.”

25. According to the evidence adduced by PW1, she was with her children at home sleeping when accosted by the two appellants. She told the court that the two men had a torch and stick (rungu) and that they ordered her to give them the money she had. In the course of the act, there was the use of violence. The appellants have questioned the identification of the weapon allegedly used as the same could not be identified with certainty. They also contended that PW2 stated she did not know what was used to beat up PW1. It is noted that PW8 produced in court the blood-stained clothes and rungu as pex1. From the trial court records, it is evident that PW1 gave the appellants the Kshs 700/= and that they took her bag of maize. It was the evidence of PW2 that she saw the 2nd appellant taking the bag of maize outside.

26. From the foregoing, it is clear that the ingredients of the offence were rightfully proven as the offenders were armed with dangerous and offensive weapons which included a stick/rungu; the offender was in the company of one or more persons, and violence and threats were occasioned.

27. The question of identification of the appellants may be answered with reference to the setting of the 1st complainant’s (PW1) association with the appellants in her maize business. Further, PW2 was able to corroborate the evidence of PW1 as she recognized one of the appellants, to be precise the 2nd appellant, as he had in the past sold maize to PW1. PW1 testified that she was able to recognize the appellants when she shone her torch light on their faces. PW1 was able to mention their names and also the nickname of the 2nd appellant to the village elder (PW4) who organized for their arrest. In this case, it is elaborate that there can be no question as to the identification by the weightier evidence of recognition of the appellants because the 1st complainant’s and PW2 ‘s identification was not done in any difficult circumstances as PW1 had known the appellants by their respective names and the moniker used by the 2nd appellant.

28. It was the evidence of PW8 that an identification parade was conducted by Inspector Ndungu, who I note was not called by the prosecution to tender his evidence, and that the suspects were positively identified by the two complainants. It was the holding of the trial court that“……the complainant had no doubt at any point as to the identity of the attackers. It was a futile and needless exercise to conduct any identification parade in the circumstance and no wonder the prosecution did not attempt to offer evidence of identification by a parade….”

29. I concur with the decision of the trial court and consider the evidence of PW8 on the aspect of the identification that he ordered to be conducted. This was despite the fact that the first complainant had already mentioned the names of her attackers to the village elder (PW4) who promptly traced them and arrested them and then escorted them to the police station. The first complainant had known the appellants before as she used to purchase maize from them and hence she had no difficulty in recognizing them during the incident. The evidence of the doctor (PW6) left no doubt about the injuries sustained by both complainants during the incident.

30. This places the court in a position to deliberate on whether the evidence of PW1 and PW2 was sufficient enough to warrant a conviction by the trial court. The law is settled that where the only evidence against an accused is that of identification/recognition the court must scrutinize that evidence with great care and be satisfied that there was no possibility of error. In Wamunga v Republic [1989] KLR 426, the Court of Appeal stated:“It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.”

31. Similarly, the same court held in Nzaro v Republic [1991] KAR 212 that evidence of identification or recognition at night must be absolutely watertight to justify a conviction. (See also Kiarie v Republic[1984] KLR 739).

32. The above principles were established inR v Turnbull & others (1976) 3 ALL ER 549, where the court laid down the factors that ought to be considered when the only evidence turns on identification by a single witness, thus:“... The judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the accused under observation? At what distance? In what light? Was the observation impeded in any way...? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? how long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

33. There can be a safe recognition even at night and the Court of Appeal stated as much in Douglas Muthanwa Ntoribi v Republic[2014] eKLR while upholding evidence of recognition at night that:“The learned judge further noted that the complainant testified he used to see the appellant in town. It is our considered view that from the evidence on record, the identification of the appellant based on recognition was free from error.”

34. In Peter Okee Omukaga & another v Republic [2011] eKLR the Court of Appeal stated on the evidence of recognition at night:“We have re-examined the evidence upon which that conclusion was made, and we find that it was well founded. We have no doubt whatsoever that Francis, John and Rose were familiar with the appellants; that Francis and John had known them by appearance as ‘neighbours’ from the village’, that they had played football with them long time ago, and that their voices were so familiar to them. Accordingly, we have no reason to disturb that finding and we dismiss that ground of Appeal. We also reject the argument that failure to hold an identification parade, and the non- recovery of the stolen articles made conviction unsafe. As this was a case of identification by recognition, an identification parade was unnecessary. The non-recovery of the stolen items did not in any way point to the innocence of the appellants.”PW1 gave concise account of the events of the robbery. She also dealt with the appellants in her maize business and they were well known to her. It was the evidence of PW2 that she recognized the 2nd appellant and that they referred to him as Councilor G. It was the evidence of the 2nd appellant that the injuries he was arrested with were inflicted by the 1st appellant. They both claim to have been arrested because they walked around at night and that at the time of the incident, they were at the Harambee. Their evidence did not cast any doubt upon the evidence tendered by the prosecution. The first complainant gave out the names of the appellants to the village elder (PW4) who pursued them and had them arrested. Upon the arrest of the 2nd appellant, he led the clan elder and villagers to the 1st appellant who was also arrested. PW2 also saw the 2nd appellant enter their room and seize a sack which he used to put maize and went out. PW2 stated that she had been seeing the 2nd appellant as he used to sell maize to her mother. Iam satisfied that the appellants were properly identified and placed at the scene of crime. Even though an identification parade was later conducted, I find that the same was superfluous as the 1st complainant already knew them prior to the incident and duly recognized them and gave their names immediately after the incident. Even though the parade officer was not called to testify, the prosecution’s evidence was overwhelming against the appellants.

35. It is also accepted in law that evidence of recognition is stronger than that of identification because recognition of someone known to one is more reliable than the identification of a stranger (see Anjononi & others v Republic [1980] KLR 59).

36. The appellants defence is in the nature of an alibi. The law is settled that an accused person who raises the defence of alibi does not assume the burden of proving it. It is sufficient if the alibi raises a reasonable doubt as to whether or not the accused was at the scene of the crime (see Kiarie v Republic [1984] KLR 739). This means that the burden always remains with the prosecution to prove that the accused committed the crime under trial. The appellants did not give notice of their alibi in order for the prosecution to call evidence in rebuttal. In such a case, the duty of the court is to consider the alibi alongside the prosecution’s case and in doing so I find the appellants’ defence to be mere moonshine and I reject it in light of the clear evidence by PW1, and PW2 putting them at the scene of the incident.

37. I therefore affirm the conviction. Although it was at night, I am satisfied that PW1 was able to recognize the appellants and PW2 was able to corroborate her evidence as she also recognized the 2nd appellant and hence, there was no likelihood of error. I am unable to fault the trial court on this finding of fact.

Offence of Rape 38. On offence of rape, the evidence of PW6 showed that PW1 was penetrated as the doctor observed thus “lacerations on both labias and vaginal walls with presence of epithelial cells on the high vaginal swab and no spermatozoa seen.” No consent could have been given in view of the injuries occasioned on PW1, and consent as a defence was not raised. PW6 produced in court PW1’s discharge summary and P3 form marked as pex6 and pexh8 respectively.

39. The medical evidence proving penetration of PW1 without consent (lack of which is an ingredient in the offence of rape under the Sexual Offences Act) having regard to the use of force and injuries occasioned on PW1 as established by medical evidence.

40. For the reasons set out above, this court finds that the respondent proved its case against the appellants for both the offence of robbery with violence contrary to section 296(2) of the Penal Code and rape contrary to section 3 of Sexual Offences Act, having established the necessary ingredients for each offence to the required standard of proof namely beyond reasonable doubt.

Grievous harm 41. The 1st appellant was charged with the offence of causing grievous harm under section 234 of the Penal Code which provides;“any person who unlawfully does grievous harm to another is guilty of a felony and is liable to imprisonment for life’’

42. The onus lay with the respondent to prove that, PW7 was attacked and sustained grievous harm; the attack was unlawful and that it was the 1st appellant who attacked her. in this case, there is no dispute that PW7 sustained injuries classified as grievous harm. From the P3 form and the discharge summary and evidence of PW6. the injuries were so severe. According to PW1, the injuries were unlawfully inflicted by the appellants who attacked her at her home. According to the evidence of PW2, the 1st appellant hit PW7 on the head with a stick and PW1 found PW7 lying unconscious on the ground and bleeding on the head. From the evidence of PW6, the 1st appellant didn’t only injure PW7’s head but also hit her with a stick/rungu between her legs. It was PW6’s medical observation that the injury inflicted by the 1st appellant between her legs caused separation of the bones that is a permanent injury that will have an impact on her for the rest of her life.

43. According to PW2, it was the 1st appellant who hit her with the rungu and she was able to identify him in court. PW2 was able to recognize and identify the 1st appellant as the one who hit PW7 on the head. The evidence ofPW7 was corroborated by PW2. This is clearly not an identification of a sole witness. In the case of Kiarie v Republic [1984] KLR 739 it was held, inter alia, that where the evidence relied on to implicate an accused person is entirely of identification, that evidence should be watertight to justify a conviction. I agree with that exposition of the law on the issue of identification.

44. The trial court found PW7 a credible witness and that her testimony was not challenged on cross examination. From the record, evidence of the PW7 was not tested nor shaken on cross examination as the alleged alibiof the 1st appellant was not brought forth to discredit the entire respondent’s evidence

45. In a nutshell, it is clear in my mind that the respondent’s evidence adduced was overwhelming and that the trial court correctly found that the respondent had proved its case beyond reasonable doubt. For those reasons, I have no reason to interfere with the conviction.

Excessive Sentence 46. The punishment for robbery with violence is provided for in section 296(2) of the Penal Code that provides that in case of a conviction the offender shall be sentenced to death. However, as regards the sentence, the Supreme Court decision in Francis Karioko Muruatetu & Anor v R [2017] eKLR has found that the mandatory nature of death sentence is unconstitutional. The trial court in this matter sentenced both the appellants to serve 15 years’ imprisonment for this offence. This court finds a sentence of imprisonment for fifteen (15) years is appropriate enough to meet the justice of the case with respect to retribution, rehabilitation and deterrence.

47. With regard to the offence of grievous harm, section234 of the Penal Code provides for life imprisonment. In this case the trial court sentenced the 1st appellant to 10 years imprisonment and this court finds a sentence of imprisonment for ten (10) years is appropriate enough to meet the justice of the case with respect to retribution, rehabilitation and deterrence.

48. Section 3 (3) of the Sexual Offences Act states as follows;“A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.”The trial court sentenced the 2nd appellant to serve twenty (20) years imprisonment. Sentencing is the discretion of the trial court but such discretion must be exercised judiciously and not capriciously. The discretion is however limited to the statutory minimum and maximum penalty prescribed for a particular offence.

49. In the case of Wanjema v Republic (1971) EA 493 the court stated as follows; “an appellate court should not interfere with the discretion which a trial court has exercised as to the sentence unless it is evident that it overlooked some material factors, took into consideration some immaterial fact, acted on wrong principle or the sentence is manifestly excessive in the circumstances of the case.”

50. As regards the sentence imposed against the 2nd appellant on the third count (rape) is not find any reason to interfere with the same as the offence was aggravated in nature and took place in the midst of a robbery with violence against the victim. The sentence of twenty years’ imprisonment is appropriate in the circumstances.

51. In the result, it is my finding that the appeals by the appellants both on conviction and sentence lack merit. The same are hereby dismissed. The convictions and sentences are upheld.

It is so ordered.

DATED AND DELIVERED AT BUNGOMA THIS 7TH DAY OF OCTOBER, 2022. D. KEMEIJUDGEIn the presence of:Lagat for 1st AppellantLagat for 2nd AppellantMukangu for RespondentKizito Court Assistant