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David Ongayi Alela,Enos Kalo Akute, Melazadeck Kengo Khamati, Eliakim Elishe John & Elphas Kengo Onyango v. Republic

(2009) JELR 98385 (CA)

Court of Appeal  •  Criminal Appeal 99 of 2007  •  16 Jan 2009  •  Kenya

Philip Kiptoo Tunoi, Daniel Kennedy Sultani Aganyanya, Erastus Mwaniki Githinji



DAVID ONGAYI ALELA, the 1st appellant, ENOS KALO AKUTE, the 2nd appellant, MELAZADECK KENGO KHAMATI, the 3rd appellant, ELIAKIM ESICHE JOHN, the 4th appellant and ELPHAS KENGO ONYANGO, the 5th appellant, were after trial jointly convicted by the Senior Resident magistrate’s court at Maseno on two counts of robbery with violence contrary to section 296(2) of the Penal Code and on one count of rape contrary to section 140 of the Penal code and upon their conviction they were duly sentenced to death as the law prescribes for convictions on robbery with violence and ten years imprisonment for the convictions on rape.

Their respective appeals to the superior court which were consolidated resulted in the convictions on the robbery charges being upheld, and the convictions on the rape charge being quashed and the sentences thereof set aside on the ground that the charge was fatally defective in that a “joint charge of rape” cannot be envisaged.

The five appellants now come…

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