REPUBLIC OF KENYA

IN THE  HIGH COURT OF KENYA

AT KITALE

CRIMINAL APPEAL NO. 99 OF 2014

(Being an appeal arising from conviction and sentence

in Kitale Criminal  case No. 2632 of  2014 delivered

by  J.A. Owiti Principal Magistrate on 12/9/2014)

KELVIN WAFULA NYONGESA..................................APPELLANT

VERSUUS

REPUBLIC...............................................................RESPONDENT

J U D G M E N T

1. The appellant was charged with the offence of Robbery with Violence contrary to Section 296(2) of the Penal Code. The particulars of the offence were that on the night of 19^th and 20^th October 2012 within Trans Nzoia County jointly with others not before court while armed with offensive weapons namely knifes and rungus robbed P O O of her Nokia mobile phone valued at Khs 4,000/- , cash kshs 4,000/- and immediately after the time of such robbery wounded the said P O O.

2. He was equally charged with the 2nd count of Gang rape contrary to Section 10 of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on the night of 19^th and 20^th day of October 2012 within Trans-Nzoia County, in association with others not before court, intentionally and unlawfully caused his penis to penetrate the vagina of P O O without her consent.

3. He was convicted and sentenced to death. He has filed this appeal citing several grounds.  First of all it shall be worthwhile to summarise the proceedings at the trial court.

4. PW1 the complainant stated that she was asleep in her house together with her boyfriend on 19/10/2012 when at around 3 am he woke up and found herself under attack together with her boyfriend. He did not identify any  of the assailants who were using a spot light. She lost consciousness and when she regained she found herself atop a  motorcycle heading towards Kitale direction. She had suffered injuries  including loss of her teeth and stab wounds on her buttocks. She was wrapped in a bedsheet. She was dropped on the ground and when she regained  her consciousness she saw a person beside a motorbike and people surrounding him. She was taken to  Kitale District  hospital where she was treated  and issued with a P3 Form.  She did not identify the robbers.

5. PW2 Moses Osengai Osuru was a neighbour to the complainant who was alerted about the incident by one Priscilla a neighbour too. He followed the motorcycle and   managed to rescue the complainant who was wrapped with a bed sheet. He managed to hold  on to one of the riders as the members of the  public came. The  person arrested was the appellant who was found armed with a knife. He said that he had a spotlight which he flashed at the appellant.

6. When cross-examined he said that he saw 3 people at the   rear seat of the motorcycle and that the complainant  had no clothes.

7. PW3 Patrick  Osuru Kwanusu  is the village elder who was equally alerted by Priscilla on 19/10/2012 at 3 am. He rushed to the road and found the complainant bleeding, naked and covered by a bedsheets. A person whom he identified as the appellant had been arrested. The police were called and they came and picked the appellant.

8. PW4 Benson Wafula Kalibo was a neighbour to the complainant living about 5 metres apart. He said that he heard a knock at her door and he went outside. Two men were standing  next to a motorcycle. They held  the complainant and placed her on the motorcycle and left the scene. He called one Moses the brother to the complainant who intercepted the rider and with the help of the  rest of the members of public arrested the appellant. He said that he pleaded with the members of the public not to  lynch him. On cross—examination he said that a knife was recovered at the scene. That by the time the complainant came out of her room she had been assaulted and had infact lost her tooth.

9. PW5 Linus Ligare a  clinical officer produced the P3 form on  which he filled after examining the complainant. He found that she had lost a tooth on the upper jaw, face was swollen and both lips. The left eye was reddish and the buttocks had wounds on the sides. Her hymen was torn and old looking.

10. When put on his defence the appellant gave unsworn evidence detailing his  itinerary on 19/10/2012 using his motor bike which took him to Suam, Endebess and Matisi later in the evening.  On his way home he met 3 people and  a lady who accused him of committing crimes in the area. They  forced him to carry the complainant but he declined and raised alarm. He was beaten and regained his consciousness at Matisi police post. He was later charged.

Analysis and Determination

11. I have  carefully perused the proceedings herein as well as the submissions by  the parties on record. The appellant  has poked holes into the prosecution evidence dwelling  majorly on the fact  that there was no proper identification given the time of the incident, that the court  failed to consider his alibi and that the exhibits were not produced.

12. The state has conceded to this appeal only to the extend that the charge of robbery with violence was not established and this court should consider reducing it to assault.

13. Before looking at this line of concession by the state, I did not find any difficulty in placing the appellant at the scene. All the witnesses especially PW2, PW3, and PW4 clearly rescued the complainant from the scene. There was no reason contrary to his unsworn evidence why the appellant was at the scene at that particular time.

14. Although the exhibits were not produced especially the motorocycle and the knife, it is not disputed that the appellant was riding the motorcycle that night with his accomplices and with them was the injured and bleeding  complainant naked and covered with a bedsheet. Infact the complainant's evidence was consistent throughout. After the attack she  regained her consciousness after being rescued by the members of the public. Were it not for them and especially one Priscilla who woke up the neighbours she  would not have known her attackers.

15. There was  significant  lights from the torches and the moon that enabled the witness arrest and identify the appellant who was  handed over  to Matisi police post.

16. The injuries sustained by  the complainant were consistent with what Linus Ligare the clinical officer found when filling the P3 form.

17. I agree with  the learned state counsel that nothing was stolen from the complainant. The critical ingredient of robbery with violence includes theft of the victims property. In this case the complainant did not testify that she lost anything.

18. It is consequently clear that he sustained serious injuries and despite the fact that the exhibits were not produced in court, the injuries she sustained clearly emanated from the attack she sustained while asleep inside the house. The clinical officer found that a sharp object had been used.

19. In the premises I shall exercise the  discretion of this court as provided  under Section 179 of the Criminal Procedure Code and reduce the charge from Robbery with Violence to Assault causing actual bodily harm as provided under Section 251 OF the Penal Code.

20. Consequently I shall dismiss this appeal for being unmeritorious. I however reduce the charge to assault pursuant to Section 251 of the Penal Code. The sentence therein is provided as a maximum of 5 years. The appellant  from the record available was arraigned in court on 25/10/2012. He was convicted on 30/7/2014. Taking  the totality of the period in custody I  am satisfied that he has served the  term. He is hereby set free unless lawfully held.

Delivered, signed and dated  at Kitale  this 12^th day of  April 2018.

 _________________

H.K. CHEMITEI

JUDGE

12/4/18

In the presence of:

Mr Kakoi for the State

Appellant – present

Court Assistant – Kirong

Judgment read in open court.