1. Abuya Moi Rioba, the appellant herein, was convicted of the offence of rape contrary to section 3(1) as read with section 3 (3) of the Sexual Offences Act No.3 of 2006.
2. The particulars of the offence were that on the 23rd day of January 2018 at Kurtyange village, Kuria West subcounty within Migori County, he intentionally and unlawfully caused his penis to penetrate the vagina of E.B.R. by use of force.
3. The appellant was sentenced to twenty years' imprisonment. He was aggrieved and has appealed against both the conviction and the sentence. He appeared in person and raised the following grounds of appeal:
a) That the trial court erred in law and fact in not observing that the prosecution's case was full of contradictions, discrepancies, and inconsistencies, which were inconsequential to the conviction.
b) That the trial court erred in law and fact in not observing that the prosecution failed to prove its case beyond a reasonable doubt as legally required by law.
c) That the sentence imposed is manifestly excessive in light of the circumstances of the case.
d) That the trial court erred in law in not admitting the appellant’s mitigation as provided for under Sections 216 and 329 of CPC for proper sentencing pursuant to Section 323 of CPC.
e) That the trial court erred in law and in fact in not considering procedural errors that were inconsequential to the conviction.
f) That the trial court erred in law and fact in disregarding the appellant’s defence despite the same being worthy of acquittal.
g) That further grounds to be adduced once the trial court records (proceedings) are received and after pursuing the same.
4. The state did not file any grounds of opposition or submissions.
5. This is a first appellate court. As expected, I have analysed and evaluated all the evidence adduced before the lower court. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs the Republic [1972] EA 32.
6. The ingredients of the offence of rape are set out in section 3 of the Sexual Offences Act, which states as follows:
A person commits the offence termed rape if—
(a) he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;
(b) the other person does not consent to the penetration; or
(c) the consent is obtained by force or by means of threats or intimidation of any kind.
7. E.B.R (PW1), the 76-year-old complainant, testified that the appellant raped her. Although her statement was somewhat incoherent, she maintained her account and stated that the appellant was arrested after trying to escape when she raised an alarm.
8. Salim Motatiro Mwita (PW2) responded to the complainant’s alarm. He testified that he was on his way to borrow money when he heard a woman shouting for help. He quickly went to the scene and saw the appellant lying on the complainant, who was between her legs. When the appellant noticed him, the appellant ran at him holding a knife. Because his trousers were not properly fixed, he tripped and fell. PW2 then shouted for assistance, and members of the public who arrived assisted in arresting the appellant.
9. Robi Wanswi Abraham (PW4), the chief clinical officer at Migori, examined the complainant and noticed seminal discharge and bruises on her vagina. Laboratory tests of the high vaginal swab revealed blood cells, spermatozoa, pus cells, and epithelial cells.
10. The medical evidence further verified that the complainant had engaged in non-consensual sexual intercourse.
11. The evidence of the complainant and that of PW2 identified the appellant as the perpetrator of the offence to the required standards.
12. Section 3 (3) of the Sexual Offences Act provides the sentence for the offence of rape in the following terms:
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.
13. An appellate court would interfere with the sentence of the trial court only where there exists, to a sufficient extent, circumstances entitling it to vary the order of the trial court. These circumstances were well illustrated in the case of Nillson vs Republic [1970] E.A. 599, as follows:
The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence, and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in JAMES Vs. REX (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor. To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R Vs. SHERSHEWSITY (1912) C.CA 28 T.LR 364.
14. The appellant received a twenty-year prison sentence. The appellant has not demonstrated that the trial magistrate based the decision on an incorrect principle or ignored any relevant factor. Therefore, I see no reason to alter the sentence.
15. The appeal lacks merit, so I am dismissing it.
Delivered and signed at Migori, this 23rd day of February 2026
2. The particulars of the offence were that on the 23rd day of January 2018 at Kurtyange village, Kuria West subcounty within Migori County, he intentionally and unlawfully caused his penis to penetrate the vagina of E.B.R. by use of force.
3. The appellant was sentenced to twenty years' imprisonment. He was aggrieved and has appealed against both the conviction and the sentence. He appeared in person and raised the following grounds of appeal:
a) That the trial court erred in law and fact in not observing that the prosecution's case was full of contradictions, discrepancies, and inconsistencies, which were inconsequential to the conviction.
b) That the trial court erred in law and fact in not observing that the prosecution failed to prove its case beyond a reasonable doubt as legally required by law.
c) That the sentence imposed is manifestly excessive in light of the circumstances of the case.
d) That the trial court erred in law in not admitting the appellant’s mitigation as provided for under Sections 216 and 329 of CPC for proper sentencing pursuant to Section 323 of CPC.
e) That the trial court erred in law and in fact in not considering procedural errors that were inconsequential to the conviction.
f) That the trial court erred in law and fact in disregarding the appellant’s defence despite the same being worthy of acquittal.
g) That further grounds to be adduced once the trial court records (proceedings) are received and after pursuing the same.
4. The state did not file any grounds of opposition or submissions.
5. This is a first appellate court. As expected, I have analysed and evaluated all the evidence adduced before the lower court. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs the Republic [1972] EA 32.
6. The ingredients of the offence of rape are set out in section 3 of the Sexual Offences Act, which states as follows:
A person commits the offence termed rape if—
(a) he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;
(b) the other person does not consent to the penetration; or
(c) the consent is obtained by force or by means of threats or intimidation of any kind.
7. E.B.R (PW1), the 76-year-old complainant, testified that the appellant raped her. Although her statement was somewhat incoherent, she maintained her account and stated that the appellant was arrested after trying to escape when she raised an alarm.
8. Salim Motatiro Mwita (PW2) responded to the complainant’s alarm. He testified that he was on his way to borrow money when he heard a woman shouting for help. He quickly went to the scene and saw the appellant lying on the complainant, who was between her legs. When the appellant noticed him, the appellant ran at him holding a knife. Because his trousers were not properly fixed, he tripped and fell. PW2 then shouted for assistance, and members of the public who arrived assisted in arresting the appellant.
9. Robi Wanswi Abraham (PW4), the chief clinical officer at Migori, examined the complainant and noticed seminal discharge and bruises on her vagina. Laboratory tests of the high vaginal swab revealed blood cells, spermatozoa, pus cells, and epithelial cells.
10. The medical evidence further verified that the complainant had engaged in non-consensual sexual intercourse.
11. The evidence of the complainant and that of PW2 identified the appellant as the perpetrator of the offence to the required standards.
12. Section 3 (3) of the Sexual Offences Act provides the sentence for the offence of rape in the following terms:
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.
13. An appellate court would interfere with the sentence of the trial court only where there exists, to a sufficient extent, circumstances entitling it to vary the order of the trial court. These circumstances were well illustrated in the case of Nillson vs Republic [1970] E.A. 599, as follows:
The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence, and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in JAMES Vs. REX (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor. To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R Vs. SHERSHEWSITY (1912) C.CA 28 T.LR 364.
14. The appellant received a twenty-year prison sentence. The appellant has not demonstrated that the trial magistrate based the decision on an incorrect principle or ignored any relevant factor. Therefore, I see no reason to alter the sentence.
15. The appeal lacks merit, so I am dismissing it.
Delivered and signed at Migori, this 23rd day of February 2026