Samson Apopong v Republic [2013] KEHC 1075 (KLR)
- Court
- High Court of Kenya
- Case number
- 1075
- Citation
- [2013] KEHC 1075 (KLR)
- Decided
- 7 November 2013
The acquittal of the Appellant's co-accused does not automatically defeat the charge of gang rape against the Appellant. The court orders a retrial due to unanswered questions regarding the role of the Appellant in the incident.
Facts
The Appellant was charged with gang rape and indecent act with a child. The Complainant, D B A, was raped by the Appellant and his co-accused Abdalla Osman Simiyu and David Peraa Chemaswet on 29 January 2012. The Appellant and his co-accused were tried and acquitted of the gang rape charge, but the Appellant was convicted of the indecent act with a child charge.
Issues
- Whether the acquittal of the Appellant's co-accused automatically defeated the charge of gang rape against the Appellant.
- Whether the learned trial Magistrate erred in convicting the Appellant without establishing the ingredients of gang rape and/or defilement.
Reasoning
The court found that for gang rape, there must be more than one assailant acting in association with a common intention, even if not all act in the actual rape or defilement. Since the co-accused were acquitted, they could not be in association with the Appellant, and the charge of gang rape could not stand.
Outcome
The case is remanded for retrial.
Orders
- Order for retrial
Authorities cited
Legislation (2)
- Sexual Offences Act No 3 of 2006
- Criminal Procedure Code
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