REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIVASHA
CRIMINAL APPEAL NO. E006 OF 2025
ALLAN MUCHORI MWANGI...........................................................................APPELLANT
-VERSUS-
REPUBLIC.....................................................................................................RESPONDENT
(Being an appeal from the judgment and sentence of the trial court (Hon E Kelly, PM), dated 8.8.2024, in the original Naivasha CMCCRC No. E23 of 2024)
JUDGEMENT
Background of the Appeal
1. The Appellant was charged with an offence of rape contrary to Section 3(1)(a)(c) as read with Section 3(3) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence as set out in the charge sheet were that on the 08/05/2024, at Maai Mahiu Township in Naivasha Sub-County within Nakuru County, the Appellant intentionally and unlawfully caused his penis to penetrate the anus of G.G.N by the use of force. In addition to the primary count, the Appellant faced an alternative charge of committing an indecent act with an adult contrary to Section 11A of the Sexual Offences Act. The particulars alleged that on the same date and in the same location, the Appellant intentionally and unlawfully touched the buttocks, thighs, and anus of the complainant against his will.
2. The Appellant when arraigned at the trial court on the 13/06/2024 and after the substance of the charges were read to him in a language he understood, entered a plea of not guilty to both counts prompting a full trial.
3. The trial court delivered its reserved judgment on 04/02/2025 in which it found that the prosecution to have discharged its burden of proof beyond reasonable doubt on the main count of rape. The Appellant was thus convicted and consequently sentenced to serve life imprisonment.
4. Being aggrieved by both the conviction and the sentence, the Appellant lodged this appeal through a Petition of Appeal dated the 10/02/2025. The appeal challenges the legal and factual findings of the trial court, arguing that the conviction was unsafe and the sentence was manifestly harsh and excessive in light of the circumstances and the legal principles. It is averred that the trial court erred by convicting the Appellant when all the essential elements of the offence of rape had not been conclusively established by the prosecution.
5. It is asserted that the imposed sentence was in violation of Section 3(1) of the Sexual Offences Act and Article 50 of the Constitution of Kenya, 2010, which guarantees the right to a fair trial and appropriate sentencing. That based on the merits of the case, existing law, and emerging jurisprudence, the sentence of life imprisonment is disproportionate, harsh, and inappropriate under the specific circumstances of the case. The Appellant prays that this appeal succeeds in its entirety, that the conviction be quashed and the sentence be set aside to allow for his liberty.
Summary of the Trial Proceedings at the trial
6. The evidence at the trial court was predicated on the testimonies of three prosecution witnesses and the Appellant’s own testimony. PW1, the complainant, provided a chronological account of the events beginning on the 08/05/2024. He testified that he arrived at Maai Mahiu around 6:30 p.m. via matatu, intending to meet his brother, Charles, who was to take him a new job in Limuru. While waiting at a hotel, his phone died, and he was unable to find a charger. The Appellant approached him near a lorry, claiming to be a friend of his brother and gaining his trust by providing specific details about the brother’s motorcycle.
7. Due to safety concerns raised by the Appellant regarding recent murders in the area, PW1 accompanied the Appellant to a room that he later identified as a lodging. He indicated that after drinking water provided by the Appellant, he passed out and woke up at 4:30 a.m. only to find himself naked, except for a T-shirt, under a blanket with the Appellant. He described the Appellant grabbing his shoulders, pulling him toward the wall, and claiming he was not done with him. PW1 testified to experiencing intense pain in his anus, leading to the realization that he had been sodomized.
8. The complainant further explained that the resultant trauma included feelings of shame and embarrassment that led him to hide from his family for several weeks. He eventually used the USSD code for a Please Call Me message previously sent by the Appellant to obtain the Appellant’s phone number and lured him to a meeting point under the guise of another visit, where the police effected an arrest.
9. PW2, Catherine Kimani, a Clinical Officer at Maai Mahiu Health Centre, examined the complainant on the 12/06/2024, approximately one month after the incident. She testified that upon examination of the anal region, she found healing bruises at the 6 and 8 o’clock positions. She noted that the sphincter tone was normal and tests for various infections were negative, but she concluded that the presence of healing bruises and the complainant’s history were consistent with sodomy. She classified the injury as grievous harm and identified a penis as the likely cause.
10. PW3, the investigation officer testified and recalled the complainant coming to the Maai Mahiu Police Station to narrate his ordeal. She corroborated the complainant’s strategy to lure the culprit via phone. She testified that the police laid an ambush at the Total Petrol Station, where they arrested the Appellant after a signal from the complainant. She observed that the complainant appeared traumatized and embarrassed during the process.
11. The Appellant gave an unsworn testimony as DW1 and denied all charges. It was his case that the complainant had framed him and questioned the logistical possibility of the act occurring in a lodging without being noticed by staff or other residents. He claimed that he was being targeted due to an unnamed person’s grudge regarding money. During cross-examination, he admitted to being in communication with the complainant via phone but insisted the allegations of sexual assault were fabricated.
Summary of the Appellant’s Submissions
12. The core of the Appellant’s submissions is that the conviction was unsafe because the essential element of penetration was not proved to the required legal standard. Regarding penetration, the Appellant submitted that Section 2 of the Sexual Offences Act requires clear proof of partial or complete insertion. The Appellant contended that the evidence of both the complainant and the clinical officer was insufficient. It was argued that since the complainant was allegedly unconscious during the act, his testimony regarding penile penetration was speculative rather than factual. The Appellant further emphasized that the evidence of a single witness, especially when that witness was not conscious during the core of the alleged act, must be treated with extreme caution by the court.
13. The Appellant attacked the medical evidence provided by PW2, noting that the examination occurred a full month after the incident. The Appellant questioned whether healing bruises at the 6 and 8 o’clock positions could be definitively linked to penile penetration or whether they could have been caused by other factors during the intervening month. He argued that the trial magistrate erred by attaching undue and undeserved weight to these findings, which did not establish a scientific nexus between the Appellant and the injuries.
14. On the issue of sentencing, the Appellant highlighted that while Section 3(3) of the Sexual Offences Act provides for life imprisonment, it also allows for a minimum of ten years, providing a wide range for judicial discretion based on mitigating and aggravating factors. The Appellant contended that the trial magistrate treated the life sentence as a mandatory maximum without regard for the Appellant’s mitigation as a first offender with a dependent family. The Appellant cited the case of Regan Otieno Okello v Republic to support the proposition that mandatory sentences should be substituted with discretionary ones that reflect the specifics of the case and the offender.
Summary of the Respondent’s Submissions
15. The gist of the Respondent’s submissions was that all elements of the offence were proven beyond a reasonable doubt. On the element of penetration, the Respondent submitted that the complainant’s detailed account of waking up in pain, coupled with the Appellant’s naked state and his statement that he was not done with him, created a compelling narrative of sexual assault. The Respondent argued that Section 3(1)(a) of the Sexual Offences Act focuses on intentional and unlawful penetration, and the medical findings of PW2 provided the necessary corroboration of the physical act. The Respondent further noted that penetration under the Act includes the anal opening, making the act a clear violation under the law.
16. Regarding the question of consent, the Respondent relied on Sections 42 and 43 of the Sexual Offences Act. It was argued that the Appellant used fraudulent misrepresentation by claiming to be a friend of the complainant’s brother to lure the victim. That PW1 lacked the capacity to consent because he was drugged or made to pass out, a condition specifically addressed in Section 43(4) as rendering a person incapable of appreciating the nature of the act. The Respondent characterized this as a clear act of coercion that negated any possibility of valid consent.
17. On sentencing, the Respondent argued that the trial court's discretion was exercised judiciously and in light of the heinous nature of the crime. Citing Shadrack Kipchoge Kogo v Republic , the Respondent asserted that an appellate court should not interfere with a sentence unless a wrong principle was applied or the sentence was so harsh as to be fundamentally flawed. The Respondent emphasized that the offence, the sodomizing of an adult male through drugging and deception, was a grave violation of human dignity that warranted a severe penalty to serve as a deterrent and to reflect society’s abhorrence of such acts.
Issues for Determination
18. This being a first appeal, the Court is bound to re-evaluate and re-analyze the evidence presented in the trial court and draw its own independent conclusions while giving due allowance for the fact that it did not see or hear the witnesses testify. In Okeno vs Republic [1972] E.A. 32 , this Court’s predecessor stated:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandyav.R. [1957] E.A. 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). 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, see Peters v. Sunday Post, [1958] E.A. 424.”
19. Having reminded myself of the law and duty in this appeal, I have anxiously considered the record as well as the rival submissions presented by both parties and discerned the issues which avail themselves for my consideration and determination to be; whether the appellant's conviction was properly grounded in law; and, whether the sentence imposed was harsh, excessive and or otherwise unlawful to justify with the indubitable judicial discretion vested in the trial court.
20. The known ingredients of the offence of rape as created in Section 3 (1) of the Sexual Offences Act remain; the intentional and unlawful penetration of the genital organ of one person by another coupled with the absence of consent. In this appeal, the issue of identification is not contested because the Appellant does not dispute the fact that he was with the complainant on the incident night. The court is thus only tasked with determining whether the tendered evidence properly established the lack of consensual penetration.
21. Penetration is defined under Section 2 of the Act as the partial or complete insertion of the genital organs of one person into the genital organs of another. For the purposes of the Act, the definition of genital organs expressly includes the anus. The Appellant argues that because the victim was unconscious, he could not testify to the act of insertion itself and further, that the medical evidence was inconclusive. However, a careful review of the testimony of PW1 reveals a consistent and detailed narrative. PW1 testified to waking up and feeling a lot of pain from his anus and realized that he had been sodomized that night. While the act itself occurred while he was unconscious, there is no requirement that the victim must be conscious during the penetration; it only requires proof that the act occurred.
22. The court holds that the fact that the complainant woke up naked with the Appellant naked next to him provides a strong circumstantial link to the physical pain he felt. This link is further fortified by the medical evidence from PW2, who found healing bruises at 6 and 8 o’clock of the anal region. While the Appellant challenges the delay in examination, forensic practices for instance those under the National Guidelines on Management of Sexual Violence provide that while acute injuries heal quickly, traumatic anal penetration can leave residual signs that remain visible to a trained clinician for several weeks. The specific location of these bruises at the 6 and 8 o’clock positions is highly characteristic of traumatic penetration when the patient is in the supine position.
23. The Appellant’s argument that these bruises were not definitively linked to penile penetration is a standard defence tactic, but when viewed alongside PW1’s otherwise cogent and credible testimony, the inference of rape becomes overwhelming. The court finds that the combination of the victim’s direct sensory evidence of pain and the medical findings of trauma satisfies the legal requirement for proof of penetration. The element of penetration was proved beyond reasonable doubt.
24. At the heart of the appeal is the averment of fabrication and a lack of forced entry. The Sexual Offences Act however provides a specific legal framework for situations where the victim is unable to resist. Section 3(1)(b) states that a person commits rape if the other person does not consent to the penetration. Section 43(1) and (4) provide that an act is intentional and unlawful if it is committed in respect of a person who is incapable of appreciating the nature of an act, including circumstances where the person is asleep, unconscious, or under the influence of medicine, drug, alcohol or other substance.
25. The complainant’s testimony was that he passed out after drinking water provided by the Appellant. In the court’s mind, this creates a statutory presumption that any sexual act occurring during that period was non-consensual because the victim lacked the capacity to grant it. By misrepresenting himself as a friend of the complainant’s brother, the Appellant created a coercive circumstance where the victim was inhibited from indicating resistance. The trial magistrate’s characterization of the Appellant as cold and scheming reflects this assessment of the luring mechanism as a predatory act designed to bypass the victim’s ability to consent as is under Section 43(1)(b).
26. On sentence, the Appellant argues it is harsh and fails to account for his status as a first offender. Notably, Section 3(3) of the Sexual Offences Act states that a person guilty of rape is liable to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life. The use of the word may, implies a discretionary power for the trial court to enhance the sentence based on aggravating factors. That discretion is however never beyond question but must be exercised in accordance with the law and the observance and respect for the constitutional thresholds on fair hearing. Here the trial court identified aggravating factors to include the use of deception, the drugging of the victim, the merciless nature of the assault, and the lasting psychological trauma inflicted on a vulnerable young man stranded in a new town.
27. However, the Appellant argues that emerging jurisprudence, particularly following the Muruatetu decision, renders mandatory or indeterminate life sentences problematic. It is critical to note that while Muruatetu vs Republic (2017) eKLR found the mandatory death penalty for murder unconstitutional, the Supreme Court has clarified in Muruatetu II (2021) and more recently in Republic vs Joshua Gichuki Mwangi (SC Petition No. E018 of 2023) that this ruling does not automatically invalidate mandatory or minimum sentences in other statutes like the Sexual Offences Act.
28. In this matter, the law does not prescribe a mandatory sentence but grants to the trial court a latitude between a minimum sentence of ten years and a ceiling of life imprisonment. Where the law so prescribes, the Constitution article 50(2)p, dictates and gives to the convicted person the right to be entitled to the least prescribed sentence. The trial court in taking into account what it considered as aggravating circumstances, failed to take into account the compelling constitutional dictate. In that failure it committed an error that this court must correct.
29. The court corrects the error and thus sets aside the sentence of life imprisonment and substitutes therefore, a sentence of 10 years.
30. In addition, while the trial court tasked the prison with the duty to deduct the period served in remand custody, in accordance with Section 333(2) of the Criminal Procedure Code, such an order becomes difficult to implement by the prosecution due to the additional need to confirm from the court file when the arrest took place. The court advices that the clearer order to give in satisfaction of section 333(2), where the convict faced his prosecution while incarcerated is to make the sentence to run from the date of arrest. It is therefore directed that the sentence shall be computed to commence on the 08/06/2024 the day he was arrested and placed into custody. It is so ordered.
Dated, signed and delivered virtually this 9 th day of February, 2026
Patrick J O Otieno
Judge
Page | 11
IN THE HIGH COURT OF KENYA AT NAIVASHA
CRIMINAL APPEAL NO. E006 OF 2025
ALLAN MUCHORI MWANGI...........................................................................APPELLANT
-VERSUS-
REPUBLIC.....................................................................................................RESPONDENT
(Being an appeal from the judgment and sentence of the trial court (Hon E Kelly, PM), dated 8.8.2024, in the original Naivasha CMCCRC No. E23 of 2024)
JUDGEMENT
Background of the Appeal
1. The Appellant was charged with an offence of rape contrary to Section 3(1)(a)(c) as read with Section 3(3) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence as set out in the charge sheet were that on the 08/05/2024, at Maai Mahiu Township in Naivasha Sub-County within Nakuru County, the Appellant intentionally and unlawfully caused his penis to penetrate the anus of G.G.N by the use of force. In addition to the primary count, the Appellant faced an alternative charge of committing an indecent act with an adult contrary to Section 11A of the Sexual Offences Act. The particulars alleged that on the same date and in the same location, the Appellant intentionally and unlawfully touched the buttocks, thighs, and anus of the complainant against his will.
2. The Appellant when arraigned at the trial court on the 13/06/2024 and after the substance of the charges were read to him in a language he understood, entered a plea of not guilty to both counts prompting a full trial.
3. The trial court delivered its reserved judgment on 04/02/2025 in which it found that the prosecution to have discharged its burden of proof beyond reasonable doubt on the main count of rape. The Appellant was thus convicted and consequently sentenced to serve life imprisonment.
4. Being aggrieved by both the conviction and the sentence, the Appellant lodged this appeal through a Petition of Appeal dated the 10/02/2025. The appeal challenges the legal and factual findings of the trial court, arguing that the conviction was unsafe and the sentence was manifestly harsh and excessive in light of the circumstances and the legal principles. It is averred that the trial court erred by convicting the Appellant when all the essential elements of the offence of rape had not been conclusively established by the prosecution.
5. It is asserted that the imposed sentence was in violation of Section 3(1) of the Sexual Offences Act and Article 50 of the Constitution of Kenya, 2010, which guarantees the right to a fair trial and appropriate sentencing. That based on the merits of the case, existing law, and emerging jurisprudence, the sentence of life imprisonment is disproportionate, harsh, and inappropriate under the specific circumstances of the case. The Appellant prays that this appeal succeeds in its entirety, that the conviction be quashed and the sentence be set aside to allow for his liberty.
Summary of the Trial Proceedings at the trial
6. The evidence at the trial court was predicated on the testimonies of three prosecution witnesses and the Appellant’s own testimony. PW1, the complainant, provided a chronological account of the events beginning on the 08/05/2024. He testified that he arrived at Maai Mahiu around 6:30 p.m. via matatu, intending to meet his brother, Charles, who was to take him a new job in Limuru. While waiting at a hotel, his phone died, and he was unable to find a charger. The Appellant approached him near a lorry, claiming to be a friend of his brother and gaining his trust by providing specific details about the brother’s motorcycle.
7. Due to safety concerns raised by the Appellant regarding recent murders in the area, PW1 accompanied the Appellant to a room that he later identified as a lodging. He indicated that after drinking water provided by the Appellant, he passed out and woke up at 4:30 a.m. only to find himself naked, except for a T-shirt, under a blanket with the Appellant. He described the Appellant grabbing his shoulders, pulling him toward the wall, and claiming he was not done with him. PW1 testified to experiencing intense pain in his anus, leading to the realization that he had been sodomized.
8. The complainant further explained that the resultant trauma included feelings of shame and embarrassment that led him to hide from his family for several weeks. He eventually used the USSD code for a Please Call Me message previously sent by the Appellant to obtain the Appellant’s phone number and lured him to a meeting point under the guise of another visit, where the police effected an arrest.
9. PW2, Catherine Kimani, a Clinical Officer at Maai Mahiu Health Centre, examined the complainant on the 12/06/2024, approximately one month after the incident. She testified that upon examination of the anal region, she found healing bruises at the 6 and 8 o’clock positions. She noted that the sphincter tone was normal and tests for various infections were negative, but she concluded that the presence of healing bruises and the complainant’s history were consistent with sodomy. She classified the injury as grievous harm and identified a penis as the likely cause.
10. PW3, the investigation officer testified and recalled the complainant coming to the Maai Mahiu Police Station to narrate his ordeal. She corroborated the complainant’s strategy to lure the culprit via phone. She testified that the police laid an ambush at the Total Petrol Station, where they arrested the Appellant after a signal from the complainant. She observed that the complainant appeared traumatized and embarrassed during the process.
11. The Appellant gave an unsworn testimony as DW1 and denied all charges. It was his case that the complainant had framed him and questioned the logistical possibility of the act occurring in a lodging without being noticed by staff or other residents. He claimed that he was being targeted due to an unnamed person’s grudge regarding money. During cross-examination, he admitted to being in communication with the complainant via phone but insisted the allegations of sexual assault were fabricated.
Summary of the Appellant’s Submissions
12. The core of the Appellant’s submissions is that the conviction was unsafe because the essential element of penetration was not proved to the required legal standard. Regarding penetration, the Appellant submitted that Section 2 of the Sexual Offences Act requires clear proof of partial or complete insertion. The Appellant contended that the evidence of both the complainant and the clinical officer was insufficient. It was argued that since the complainant was allegedly unconscious during the act, his testimony regarding penile penetration was speculative rather than factual. The Appellant further emphasized that the evidence of a single witness, especially when that witness was not conscious during the core of the alleged act, must be treated with extreme caution by the court.
13. The Appellant attacked the medical evidence provided by PW2, noting that the examination occurred a full month after the incident. The Appellant questioned whether healing bruises at the 6 and 8 o’clock positions could be definitively linked to penile penetration or whether they could have been caused by other factors during the intervening month. He argued that the trial magistrate erred by attaching undue and undeserved weight to these findings, which did not establish a scientific nexus between the Appellant and the injuries.
14. On the issue of sentencing, the Appellant highlighted that while Section 3(3) of the Sexual Offences Act provides for life imprisonment, it also allows for a minimum of ten years, providing a wide range for judicial discretion based on mitigating and aggravating factors. The Appellant contended that the trial magistrate treated the life sentence as a mandatory maximum without regard for the Appellant’s mitigation as a first offender with a dependent family. The Appellant cited the case of Regan Otieno Okello v Republic to support the proposition that mandatory sentences should be substituted with discretionary ones that reflect the specifics of the case and the offender.
Summary of the Respondent’s Submissions
15. The gist of the Respondent’s submissions was that all elements of the offence were proven beyond a reasonable doubt. On the element of penetration, the Respondent submitted that the complainant’s detailed account of waking up in pain, coupled with the Appellant’s naked state and his statement that he was not done with him, created a compelling narrative of sexual assault. The Respondent argued that Section 3(1)(a) of the Sexual Offences Act focuses on intentional and unlawful penetration, and the medical findings of PW2 provided the necessary corroboration of the physical act. The Respondent further noted that penetration under the Act includes the anal opening, making the act a clear violation under the law.
16. Regarding the question of consent, the Respondent relied on Sections 42 and 43 of the Sexual Offences Act. It was argued that the Appellant used fraudulent misrepresentation by claiming to be a friend of the complainant’s brother to lure the victim. That PW1 lacked the capacity to consent because he was drugged or made to pass out, a condition specifically addressed in Section 43(4) as rendering a person incapable of appreciating the nature of the act. The Respondent characterized this as a clear act of coercion that negated any possibility of valid consent.
17. On sentencing, the Respondent argued that the trial court's discretion was exercised judiciously and in light of the heinous nature of the crime. Citing Shadrack Kipchoge Kogo v Republic , the Respondent asserted that an appellate court should not interfere with a sentence unless a wrong principle was applied or the sentence was so harsh as to be fundamentally flawed. The Respondent emphasized that the offence, the sodomizing of an adult male through drugging and deception, was a grave violation of human dignity that warranted a severe penalty to serve as a deterrent and to reflect society’s abhorrence of such acts.
Issues for Determination
18. This being a first appeal, the Court is bound to re-evaluate and re-analyze the evidence presented in the trial court and draw its own independent conclusions while giving due allowance for the fact that it did not see or hear the witnesses testify. In Okeno vs Republic [1972] E.A. 32 , this Court’s predecessor stated:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandyav.R. [1957] E.A. 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). 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, see Peters v. Sunday Post, [1958] E.A. 424.”
19. Having reminded myself of the law and duty in this appeal, I have anxiously considered the record as well as the rival submissions presented by both parties and discerned the issues which avail themselves for my consideration and determination to be; whether the appellant's conviction was properly grounded in law; and, whether the sentence imposed was harsh, excessive and or otherwise unlawful to justify with the indubitable judicial discretion vested in the trial court.
20. The known ingredients of the offence of rape as created in Section 3 (1) of the Sexual Offences Act remain; the intentional and unlawful penetration of the genital organ of one person by another coupled with the absence of consent. In this appeal, the issue of identification is not contested because the Appellant does not dispute the fact that he was with the complainant on the incident night. The court is thus only tasked with determining whether the tendered evidence properly established the lack of consensual penetration.
21. Penetration is defined under Section 2 of the Act as the partial or complete insertion of the genital organs of one person into the genital organs of another. For the purposes of the Act, the definition of genital organs expressly includes the anus. The Appellant argues that because the victim was unconscious, he could not testify to the act of insertion itself and further, that the medical evidence was inconclusive. However, a careful review of the testimony of PW1 reveals a consistent and detailed narrative. PW1 testified to waking up and feeling a lot of pain from his anus and realized that he had been sodomized that night. While the act itself occurred while he was unconscious, there is no requirement that the victim must be conscious during the penetration; it only requires proof that the act occurred.
22. The court holds that the fact that the complainant woke up naked with the Appellant naked next to him provides a strong circumstantial link to the physical pain he felt. This link is further fortified by the medical evidence from PW2, who found healing bruises at 6 and 8 o’clock of the anal region. While the Appellant challenges the delay in examination, forensic practices for instance those under the National Guidelines on Management of Sexual Violence provide that while acute injuries heal quickly, traumatic anal penetration can leave residual signs that remain visible to a trained clinician for several weeks. The specific location of these bruises at the 6 and 8 o’clock positions is highly characteristic of traumatic penetration when the patient is in the supine position.
23. The Appellant’s argument that these bruises were not definitively linked to penile penetration is a standard defence tactic, but when viewed alongside PW1’s otherwise cogent and credible testimony, the inference of rape becomes overwhelming. The court finds that the combination of the victim’s direct sensory evidence of pain and the medical findings of trauma satisfies the legal requirement for proof of penetration. The element of penetration was proved beyond reasonable doubt.
24. At the heart of the appeal is the averment of fabrication and a lack of forced entry. The Sexual Offences Act however provides a specific legal framework for situations where the victim is unable to resist. Section 3(1)(b) states that a person commits rape if the other person does not consent to the penetration. Section 43(1) and (4) provide that an act is intentional and unlawful if it is committed in respect of a person who is incapable of appreciating the nature of an act, including circumstances where the person is asleep, unconscious, or under the influence of medicine, drug, alcohol or other substance.
25. The complainant’s testimony was that he passed out after drinking water provided by the Appellant. In the court’s mind, this creates a statutory presumption that any sexual act occurring during that period was non-consensual because the victim lacked the capacity to grant it. By misrepresenting himself as a friend of the complainant’s brother, the Appellant created a coercive circumstance where the victim was inhibited from indicating resistance. The trial magistrate’s characterization of the Appellant as cold and scheming reflects this assessment of the luring mechanism as a predatory act designed to bypass the victim’s ability to consent as is under Section 43(1)(b).
26. On sentence, the Appellant argues it is harsh and fails to account for his status as a first offender. Notably, Section 3(3) of the Sexual Offences Act states that a person guilty of rape is liable to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life. The use of the word may, implies a discretionary power for the trial court to enhance the sentence based on aggravating factors. That discretion is however never beyond question but must be exercised in accordance with the law and the observance and respect for the constitutional thresholds on fair hearing. Here the trial court identified aggravating factors to include the use of deception, the drugging of the victim, the merciless nature of the assault, and the lasting psychological trauma inflicted on a vulnerable young man stranded in a new town.
27. However, the Appellant argues that emerging jurisprudence, particularly following the Muruatetu decision, renders mandatory or indeterminate life sentences problematic. It is critical to note that while Muruatetu vs Republic (2017) eKLR found the mandatory death penalty for murder unconstitutional, the Supreme Court has clarified in Muruatetu II (2021) and more recently in Republic vs Joshua Gichuki Mwangi (SC Petition No. E018 of 2023) that this ruling does not automatically invalidate mandatory or minimum sentences in other statutes like the Sexual Offences Act.
28. In this matter, the law does not prescribe a mandatory sentence but grants to the trial court a latitude between a minimum sentence of ten years and a ceiling of life imprisonment. Where the law so prescribes, the Constitution article 50(2)p, dictates and gives to the convicted person the right to be entitled to the least prescribed sentence. The trial court in taking into account what it considered as aggravating circumstances, failed to take into account the compelling constitutional dictate. In that failure it committed an error that this court must correct.
29. The court corrects the error and thus sets aside the sentence of life imprisonment and substitutes therefore, a sentence of 10 years.
30. In addition, while the trial court tasked the prison with the duty to deduct the period served in remand custody, in accordance with Section 333(2) of the Criminal Procedure Code, such an order becomes difficult to implement by the prosecution due to the additional need to confirm from the court file when the arrest took place. The court advices that the clearer order to give in satisfaction of section 333(2), where the convict faced his prosecution while incarcerated is to make the sentence to run from the date of arrest. It is therefore directed that the sentence shall be computed to commence on the 08/06/2024 the day he was arrested and placed into custody. It is so ordered.
Dated, signed and delivered virtually this 9 th day of February, 2026
Patrick J O Otieno
Judge
Page | 11