REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. E058 OF 2019
ERIC WANJALA SIMIYU………………..……………………. APPELLANT
VERSUS
REPUBLIC………………………………………....…….……RESPONDENT
(Being an appeal from the judgement and sentence of Hon. C.A.S Mutai-Senior Principal Magistrate’s Court Sexual Offence Case No. E1323 of 2016)
JUDGEMENT
A. BACKGROUND
1. The Appellant herein was charged at the Chief Magistrate’s Court at Bungoma with the offence of rape contrary to Section 3(1)(a)(b) as read with Section 3(3) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the offence were that on 22nd day of May, 2016 in Mayanja Village within Bungoma County, the Appellant unlawfully and intentionally caused penetration of his genital organ, namely penis, into the genital organ, namely vagina of V. N. M, without her consent.
3. The Appellant also faced an alternative charge of committing an indecent act with an adult contrary to Section 11 of the Sexual Offence Act No. 3 of 2006.
B. THE DUTY OF A FIRST APPELLATE COURT
4. The duty of the first appellate court remains as set out in the Court of Appeal of Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows:-
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.”
5. This position was further espoused in the case of Okeno Vs R (1972) EA 32 where the Court 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 and the appellate court’s own decision on the evidence. The first appellate court must Itself weigh conflicting evidence and draw its own conclusion”.
C. EVIDENCE
C.1. Respondent’s Case
6. PW1, V.N.M, gave her testimony on camera under Section 31 of the Sexual Offences Act as she was declared vulnerable. It was her evidence that she was a university student. That on 27th May 2016, at about 7.00 p.m. while at home, her mother had sent her to purchase some kerosene and cooking oil wherefore she proceeded to the shop which was about 200 metres from her home. On her way back home from the shop she spotted a motorcycle been ridden ahead of her. She then sensed that someone was approaching her from behind and whereas she stepped aside to allow that person to pass, she was suddenly grabbed by the neck and was lifted up. That she then raised an alarm as the assailant forcefully took her to a nearby church building that was still under construction. She told the Court that she struggled to free herself but the person laid her on the ground and proceeded to unbuckle his belt and remove his long trouser. She tried to run away but he caught a hold of her, pulled her skirt upwards and proceeded to tear her panties. She told the Court that on that day she wore a skirt. The person threatened to kill her as he removed his trousers and shorts at the same time. She told the Court the Court that the person placed his penis inside her vagina and it was at that moment that neighbours came to her rescue, pulling him off her. As the neighbours got hold of the person, she rushed to her mother and later they proceeded to Mayanja Police Camp. She identified the person as Erick Wanjala, the Appellant herein, Accused person in the trial Court. They were later taken to Bungoma Police Station and she went to the hospital the following day on, 23rd May 2016. She told the Court that the age assessment form confirmed that she was 20 years old. On cross-examination, she told the Court that the incident did not occur when it was very dark and she was able to identify the Appellant. She did a dock identification of the Appellant herein.
7. PW2 was Shadrack Wekesa who testified that both PW1and the appellant were his neighbours. That on the material date he had been at home in the company of Oliver Wanjala, when he heard some noise and they went out to investigate and after walking for about 15 metres, they then spotted a motorbike parked beside the road and close by was an uncompleted church building. They heard some commotion coming from inside the said church and on heading inside they saw the Appellant herein kneeling over PW1, who had her skirt placed above her waist with the Appellant’s trouser pulled towards his knees. They quickly apprehended the Appellant and the mother to PW1 was quickly summoned. They took the Appellant to Mayanja Administration Police Station in the company of PW1, her mother and Oliver where they were referred to Bungoma Police Station. He told the Court that the incident occurred at dusk and they were able to positively identify the Appellant. PW2 told the Court that he knew the Appellant for a period of 5 years and that he used to fetch water from his home. He did a dock identification of the Appellant. On cross-examination, he told the Court that PW1 was struggling to free herself from the Appellant’s hold and that he saw the Appellant very well. On re-examination, he reiterated that they found the PW1 lying under the Appellant.
8. PW3 was Jane Kagah Amwamu Amwama who testified that PW1 is her child and that she was above 18 years old. She told the Court that on 22nd May 2016, she had sent PW1 to the shop to purchase some oil and that 15 minutes later, she heard somebody raising an alarm which prompted her to proceed to find out what was happening. That she then inquired from a neighbour of the whereabouts of PW1 but the neighbour told her he had not seen her. She returned to her home and upon her arrival, PW1 followed her shortly and request her to follow her to a church. That upon arrival at the church, they found a crowd and the Appellant had been apprehended by members of the public. That was when she established what had happened to PW1. They then proceeded to report the matter to the police.
9. PW4 was Elizabeth Sonya, a dentist based at Bungoma County Referral Hospital produced the age assessment report dated 25th May 2016 as P Exhibit III, which proved that at the time of the incident PW1 was 20 years old.
10. PW5 was Elias Adoka, a clinical officer based at Bungoma County Referral Hospital testified that he was the one who filled the P3 form of PW1. That on examination of her vagina he had noted the hymen was missing, she was bleeding and he determined that PW1 was raped. He produced the P3 form as Exhibit II.
11. PW6, Evalyne Okello the investigating officer testified that on 23rd May 2016 she received a report lodged by PW1, whereat she had alleged that she was raped on 22nd May 2016, at around 7.00 p.m. She then interrogated PW1, record her statement and referred her to the hospital. That she also recorded the statements of the witnesses who were at the scene during the incident and visited the scene whereat she established that the ordeal occurred in an uncompleted church building. After her investigations she proceeded to charge the Appellant herein.
12. When placed on his defence, the Appellant herein denied the charges and maintained that he had been framed by the PW1 and 3 other people. On cross-examination, he had denied ever sighting PW1. Further that on the material date he was heading home when he was apprehended along the road at Sirisia Junction.
13. After a full trial, the learned trial magistrate had found the Appellant guilty, convicted him, and sentenced him serve a term of Ten (10) years’ imprisonment.
D. APPEAL
14. Aggrieved by the conviction and sentence, the Appellant instituted this undated petition of appeal, which raises the following grounds of appeal:
a. That the learned trial magistrate erred in both law and fact in imposing a 20-year sentence as the same is unconstitutional and excessive.
b. That penetration was not proved as per the dints of Section 36 (1) of the Sexual Offences Act by extracting spermatozoa for the purposes of scientific and forensic tests to ascertain who committed the act.
c. That the Prosecution witnesses gave contradictory, inconsistent and uncorroborated evidence contrary to Section 107, 163 and 165 of the Evidence Act.
E. SUBMISSIONS
15. This Appeal was canvassed by way of written submissions. The Appellant submits that the Respondent failed to prove the requisite ingredients of the offence of rape to secure a conviction and that the Respondent’s case was marred by inconsistencies and discrepancies that casted doubts on the truthfulness of it’s witnesses.
16. The Respondent has submitted that all the ingredients of the offence of rape were proved to the required standard.
17. On the issue of sentence, the State submits that the same is on the lower side and it ought to be enhanced to Twenty (20) years as per the provisions of Section 3(3) of the Sexual Offences Act. Counsel prayed for enhancement of the said sentence and urged this Court to dismiss the Appellant’s appeal.
F. ISSUE FOR DETERMINATION
18. I have considered the Appellant’s grounds of appeal, the evidence adduced before the trial Court as well as the rival submissions thereto, and the applicable law. In the circumstances and the issues that emerge for determination are as follows:
a. Whether the Respondent proved its case to the desired threshold;
b. Whether the sentence meted upon the Appellant was appropriate.
G. ANALYSIS AND DETERMINATION
a. Whether the Respondent proved its case to the desired threshold;
19. The offence of rape is defined under Section 3(1) of the Sexual Offence Act No. 3 of 2006 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.”
20. Section 3(2) of the Sexual Offence Act provides that “the term “intentionally and unlawfully” has the meaning assigned to it in Section 43 of this Act”. The said Section 43(1) of the Act stipulates that:
“(1) An act is intentional and unlawful if it is committed –
(a)in any coercive circumstance;
(b)under false pretences or by fraudulent means; or
(c)in respect of a person who is incapable of appreciating the nature of an act which causes the offence.”
21. Section 43 of the Sexual Offences Act provides:
1.“An act is intentional and unlawful if it is committed
(a)in any coercive circumstance;
(b)under false pretences or by fraudulent means;
2. or (c) in respect of a person who is incapable of appreciating the nature of an act which causes the offence. (2) The coercive circumstances, referred to in subsection (1)(a) include any circumstances where there is - (a) use of force against the complainant or another person or against the property of the complainant or that of any other person; (b) threat of harm against the complainant or another person or against the property of the complainant or that of any other person; or (c) abuse of power or authority to the extent that the person in respect of whom an act is committed is inhibited from indicating his or her resistance to such an act, or his or her unwillingness to participate in such an act.
22. Penetration is a critical ingredient of the offence of rape. Section 2 of the Sexual Offences Act defines “penetration” as “the partial or complete insertion of the genital organs of a person into the genital organs of another person”.
23. In the present case, the evidence of PW1 as analysed hereinabove proves that the appellant had penetrated her without her consent.PW2 had corroborated her evidence; Oliver Wanjala and himself had they caught the Appellant red-handed in the act of raping thePW1 and had apprehended him.
24. PW5 who examined PW1 herein and filled her P3 form formed the prognosis that PW1, had indeed been raped as he had observed that she had bruises on her lower vaginal side, no hymen and was bleeding. The trial court, while relying on the evidence of the clinical officer, found that there had been penetration.
25. The ingredients of the offence of rape as set out under Section 3(1) of the Sexual Offences Act (supra) were proved beyond any reasonable doubts. The defence tendered by the Appellant that he had been framed was not plausible because he did not lay any basis for such framing. He was caught in flagrante delicto and the apprehended by members of the public. It is incredible for him to allege that he never saw PW1. I find that the trial magistrate duly considered the Appellant’s defence and properly rejected it. I too do find that the Appellant’s defence was a sham and that he was safely convicted.
26. In this case age was not a mandatory ingredient of the offence. The Appellant did not therefore suffer any prejudice.
27. The omission to subject the Appellant to a medical examination was not fatal to the Respondent’s case. Medical evidence for the purpose of sexual offences is provided for in Section 36 of the Sexual Offences Act, which couched in permissive terms. It gives the Court discretion to direct the taking of samples for forensic examination. There is, therefore, no obligation on the part of the trial court to direct that such samples be taken, since such directions could only be made at the discretion of the court in circumstances where the court deems it fit.
28. In George Muchika Lumbasi v Republic [2016] eKLR, the court held that Section 36 of the Sexual Offences Act does not make medical examination mandatory, except where the Court thinks it is appropriate in the circumstances of the case to subject an accused person to such examination. A similar position was taken in the case of Evans Wamalwa Simiyu v Republic [2016] eKLR and Edwin Maiyo Kandie vs. Republic [2019] eKLR .
29. The law has been settled that, despite Section 36 of the Sexual Offences Act, sexual assault is proved, not by medical examination, but by evidence adduced at the trial. The evidence of the victim and that of corroborative witnesses or circumstantial evidence is usually enough to establish sexual offences such as rape and defilement. That position was stated by the Court of Appeal in Fappyton Mutuku Ngui v Republic [2014] eKLR, that medical evidence was usually not necessary. A similar position was taken in AML v Republic [2012] eKLR, Kassim Ali vs. Republic [2006] eKLR, and George Muchika Lumbasi v Republic (supra), Robert Mutungi Muumbi v Republic [2015] eKLR and Williamson Sowa Mbwanga vs. Republic [2016] eKLR, among others.
30. It follows, therefore, that the fact that the Appellant was not medically examined to link him to the crime was not fatal to the Prosecution’s case. As stated elsewhere, PW1 gave an eloquent statement on what transpired, which the trial Court believed, and, which, I must state, was, alone, sufficient to sustain a conviction.
31. The other issue touched on inconsistencies in the evidence of the state witnesses. I have gone through the record and noted that the inconsistencies alluded to by the Appellant relate to the testimonies of PW1, PW2 and PW3 on the date of the incident only. I believe the same was minor and did not go to the core of the matter. In the case of Twehangane Alfred vs. Uganda [2003] UGCA 6, it was held that the Court will ignore minor contradictions unless the Court thinks that they point to deliberate untruthfulness or if they do affect the main substance of the Prosecution’s case. In Richard Munene v Republic [2018] eKLR, the court held that not every inconsistency or contradiction is material.
b. Whether the sentence meted upon the Appellant was appropriate.
32. Section 3(3) of the Sexual Offences Act provides for a minimum sentence of ten years which may be enhanced to life imprisonment. The Appellant was sentenced to the bare minimum sentence provided for the offence of rape. The principles in the Supreme Court decision in Muruatetu case are not applicable in Sexual offence. In Hassan Kahindi Katana alias Kinungi & Another v Republic Court of Appeal Malindi Criminal Appeal No.8/2019, it was held that the holding in Muruatetu’s case is not applicable to Sexual Offences. The Accused was ordered to serve the minimum sentence provided for the offence. The trial magistrate did not error in anyway by imposing the minimum sentence provided for.
33. The Respondent has sought for the enhancement of the Appellant’s sentence to 20 years. I have not encountered any cross petition nor any notice of enhancement of sentence wherefore I will decline that invitation to enhance the sentence.
H. CONCLUSION
34. After evaluating the evidence and for the reasons stated above, I find that the evidence adduced by the respondent had proved the charge against the Appellant beyond any reasonable doubt. The conviction of the Appellant was proper and so was his sentence.
35. This appeal is dismissed. I hereby uphold both the conviction and sentence.
Orders accordingly.
Dated and delivered at Bungoma this 18th day of December 2025
M.S. SHARIFF
JUDGE
In the presence of :
Appellant
Ms Kibet for the Respondent
Peter Machoni – Court Assistant
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. E058 OF 2019
ERIC WANJALA SIMIYU………………..……………………. APPELLANT
VERSUS
REPUBLIC………………………………………....…….……RESPONDENT
(Being an appeal from the judgement and sentence of Hon. C.A.S Mutai-Senior Principal Magistrate’s Court Sexual Offence Case No. E1323 of 2016)
JUDGEMENT
A. BACKGROUND
1. The Appellant herein was charged at the Chief Magistrate’s Court at Bungoma with the offence of rape contrary to Section 3(1)(a)(b) as read with Section 3(3) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the offence were that on 22nd day of May, 2016 in Mayanja Village within Bungoma County, the Appellant unlawfully and intentionally caused penetration of his genital organ, namely penis, into the genital organ, namely vagina of V. N. M, without her consent.
3. The Appellant also faced an alternative charge of committing an indecent act with an adult contrary to Section 11 of the Sexual Offence Act No. 3 of 2006.
B. THE DUTY OF A FIRST APPELLATE COURT
4. The duty of the first appellate court remains as set out in the Court of Appeal of Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows:-
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.”
5. This position was further espoused in the case of Okeno Vs R (1972) EA 32 where the Court 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 and the appellate court’s own decision on the evidence. The first appellate court must Itself weigh conflicting evidence and draw its own conclusion”.
C. EVIDENCE
C.1. Respondent’s Case
6. PW1, V.N.M, gave her testimony on camera under Section 31 of the Sexual Offences Act as she was declared vulnerable. It was her evidence that she was a university student. That on 27th May 2016, at about 7.00 p.m. while at home, her mother had sent her to purchase some kerosene and cooking oil wherefore she proceeded to the shop which was about 200 metres from her home. On her way back home from the shop she spotted a motorcycle been ridden ahead of her. She then sensed that someone was approaching her from behind and whereas she stepped aside to allow that person to pass, she was suddenly grabbed by the neck and was lifted up. That she then raised an alarm as the assailant forcefully took her to a nearby church building that was still under construction. She told the Court that she struggled to free herself but the person laid her on the ground and proceeded to unbuckle his belt and remove his long trouser. She tried to run away but he caught a hold of her, pulled her skirt upwards and proceeded to tear her panties. She told the Court that on that day she wore a skirt. The person threatened to kill her as he removed his trousers and shorts at the same time. She told the Court the Court that the person placed his penis inside her vagina and it was at that moment that neighbours came to her rescue, pulling him off her. As the neighbours got hold of the person, she rushed to her mother and later they proceeded to Mayanja Police Camp. She identified the person as Erick Wanjala, the Appellant herein, Accused person in the trial Court. They were later taken to Bungoma Police Station and she went to the hospital the following day on, 23rd May 2016. She told the Court that the age assessment form confirmed that she was 20 years old. On cross-examination, she told the Court that the incident did not occur when it was very dark and she was able to identify the Appellant. She did a dock identification of the Appellant herein.
7. PW2 was Shadrack Wekesa who testified that both PW1and the appellant were his neighbours. That on the material date he had been at home in the company of Oliver Wanjala, when he heard some noise and they went out to investigate and after walking for about 15 metres, they then spotted a motorbike parked beside the road and close by was an uncompleted church building. They heard some commotion coming from inside the said church and on heading inside they saw the Appellant herein kneeling over PW1, who had her skirt placed above her waist with the Appellant’s trouser pulled towards his knees. They quickly apprehended the Appellant and the mother to PW1 was quickly summoned. They took the Appellant to Mayanja Administration Police Station in the company of PW1, her mother and Oliver where they were referred to Bungoma Police Station. He told the Court that the incident occurred at dusk and they were able to positively identify the Appellant. PW2 told the Court that he knew the Appellant for a period of 5 years and that he used to fetch water from his home. He did a dock identification of the Appellant. On cross-examination, he told the Court that PW1 was struggling to free herself from the Appellant’s hold and that he saw the Appellant very well. On re-examination, he reiterated that they found the PW1 lying under the Appellant.
8. PW3 was Jane Kagah Amwamu Amwama who testified that PW1 is her child and that she was above 18 years old. She told the Court that on 22nd May 2016, she had sent PW1 to the shop to purchase some oil and that 15 minutes later, she heard somebody raising an alarm which prompted her to proceed to find out what was happening. That she then inquired from a neighbour of the whereabouts of PW1 but the neighbour told her he had not seen her. She returned to her home and upon her arrival, PW1 followed her shortly and request her to follow her to a church. That upon arrival at the church, they found a crowd and the Appellant had been apprehended by members of the public. That was when she established what had happened to PW1. They then proceeded to report the matter to the police.
9. PW4 was Elizabeth Sonya, a dentist based at Bungoma County Referral Hospital produced the age assessment report dated 25th May 2016 as P Exhibit III, which proved that at the time of the incident PW1 was 20 years old.
10. PW5 was Elias Adoka, a clinical officer based at Bungoma County Referral Hospital testified that he was the one who filled the P3 form of PW1. That on examination of her vagina he had noted the hymen was missing, she was bleeding and he determined that PW1 was raped. He produced the P3 form as Exhibit II.
11. PW6, Evalyne Okello the investigating officer testified that on 23rd May 2016 she received a report lodged by PW1, whereat she had alleged that she was raped on 22nd May 2016, at around 7.00 p.m. She then interrogated PW1, record her statement and referred her to the hospital. That she also recorded the statements of the witnesses who were at the scene during the incident and visited the scene whereat she established that the ordeal occurred in an uncompleted church building. After her investigations she proceeded to charge the Appellant herein.
12. When placed on his defence, the Appellant herein denied the charges and maintained that he had been framed by the PW1 and 3 other people. On cross-examination, he had denied ever sighting PW1. Further that on the material date he was heading home when he was apprehended along the road at Sirisia Junction.
13. After a full trial, the learned trial magistrate had found the Appellant guilty, convicted him, and sentenced him serve a term of Ten (10) years’ imprisonment.
D. APPEAL
14. Aggrieved by the conviction and sentence, the Appellant instituted this undated petition of appeal, which raises the following grounds of appeal:
a. That the learned trial magistrate erred in both law and fact in imposing a 20-year sentence as the same is unconstitutional and excessive.
b. That penetration was not proved as per the dints of Section 36 (1) of the Sexual Offences Act by extracting spermatozoa for the purposes of scientific and forensic tests to ascertain who committed the act.
c. That the Prosecution witnesses gave contradictory, inconsistent and uncorroborated evidence contrary to Section 107, 163 and 165 of the Evidence Act.
E. SUBMISSIONS
15. This Appeal was canvassed by way of written submissions. The Appellant submits that the Respondent failed to prove the requisite ingredients of the offence of rape to secure a conviction and that the Respondent’s case was marred by inconsistencies and discrepancies that casted doubts on the truthfulness of it’s witnesses.
16. The Respondent has submitted that all the ingredients of the offence of rape were proved to the required standard.
17. On the issue of sentence, the State submits that the same is on the lower side and it ought to be enhanced to Twenty (20) years as per the provisions of Section 3(3) of the Sexual Offences Act. Counsel prayed for enhancement of the said sentence and urged this Court to dismiss the Appellant’s appeal.
F. ISSUE FOR DETERMINATION
18. I have considered the Appellant’s grounds of appeal, the evidence adduced before the trial Court as well as the rival submissions thereto, and the applicable law. In the circumstances and the issues that emerge for determination are as follows:
a. Whether the Respondent proved its case to the desired threshold;
b. Whether the sentence meted upon the Appellant was appropriate.
G. ANALYSIS AND DETERMINATION
a. Whether the Respondent proved its case to the desired threshold;
19. The offence of rape is defined under Section 3(1) of the Sexual Offence Act No. 3 of 2006 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.”
20. Section 3(2) of the Sexual Offence Act provides that “the term “intentionally and unlawfully” has the meaning assigned to it in Section 43 of this Act”. The said Section 43(1) of the Act stipulates that:
“(1) An act is intentional and unlawful if it is committed –
(a)in any coercive circumstance;
(b)under false pretences or by fraudulent means; or
(c)in respect of a person who is incapable of appreciating the nature of an act which causes the offence.”
21. Section 43 of the Sexual Offences Act provides:
1.“An act is intentional and unlawful if it is committed
(a)in any coercive circumstance;
(b)under false pretences or by fraudulent means;
2. or (c) in respect of a person who is incapable of appreciating the nature of an act which causes the offence. (2) The coercive circumstances, referred to in subsection (1)(a) include any circumstances where there is - (a) use of force against the complainant or another person or against the property of the complainant or that of any other person; (b) threat of harm against the complainant or another person or against the property of the complainant or that of any other person; or (c) abuse of power or authority to the extent that the person in respect of whom an act is committed is inhibited from indicating his or her resistance to such an act, or his or her unwillingness to participate in such an act.
22. Penetration is a critical ingredient of the offence of rape. Section 2 of the Sexual Offences Act defines “penetration” as “the partial or complete insertion of the genital organs of a person into the genital organs of another person”.
23. In the present case, the evidence of PW1 as analysed hereinabove proves that the appellant had penetrated her without her consent.PW2 had corroborated her evidence; Oliver Wanjala and himself had they caught the Appellant red-handed in the act of raping thePW1 and had apprehended him.
24. PW5 who examined PW1 herein and filled her P3 form formed the prognosis that PW1, had indeed been raped as he had observed that she had bruises on her lower vaginal side, no hymen and was bleeding. The trial court, while relying on the evidence of the clinical officer, found that there had been penetration.
25. The ingredients of the offence of rape as set out under Section 3(1) of the Sexual Offences Act (supra) were proved beyond any reasonable doubts. The defence tendered by the Appellant that he had been framed was not plausible because he did not lay any basis for such framing. He was caught in flagrante delicto and the apprehended by members of the public. It is incredible for him to allege that he never saw PW1. I find that the trial magistrate duly considered the Appellant’s defence and properly rejected it. I too do find that the Appellant’s defence was a sham and that he was safely convicted.
26. In this case age was not a mandatory ingredient of the offence. The Appellant did not therefore suffer any prejudice.
27. The omission to subject the Appellant to a medical examination was not fatal to the Respondent’s case. Medical evidence for the purpose of sexual offences is provided for in Section 36 of the Sexual Offences Act, which couched in permissive terms. It gives the Court discretion to direct the taking of samples for forensic examination. There is, therefore, no obligation on the part of the trial court to direct that such samples be taken, since such directions could only be made at the discretion of the court in circumstances where the court deems it fit.
28. In George Muchika Lumbasi v Republic [2016] eKLR, the court held that Section 36 of the Sexual Offences Act does not make medical examination mandatory, except where the Court thinks it is appropriate in the circumstances of the case to subject an accused person to such examination. A similar position was taken in the case of Evans Wamalwa Simiyu v Republic [2016] eKLR and Edwin Maiyo Kandie vs. Republic [2019] eKLR .
29. The law has been settled that, despite Section 36 of the Sexual Offences Act, sexual assault is proved, not by medical examination, but by evidence adduced at the trial. The evidence of the victim and that of corroborative witnesses or circumstantial evidence is usually enough to establish sexual offences such as rape and defilement. That position was stated by the Court of Appeal in Fappyton Mutuku Ngui v Republic [2014] eKLR, that medical evidence was usually not necessary. A similar position was taken in AML v Republic [2012] eKLR, Kassim Ali vs. Republic [2006] eKLR, and George Muchika Lumbasi v Republic (supra), Robert Mutungi Muumbi v Republic [2015] eKLR and Williamson Sowa Mbwanga vs. Republic [2016] eKLR, among others.
30. It follows, therefore, that the fact that the Appellant was not medically examined to link him to the crime was not fatal to the Prosecution’s case. As stated elsewhere, PW1 gave an eloquent statement on what transpired, which the trial Court believed, and, which, I must state, was, alone, sufficient to sustain a conviction.
31. The other issue touched on inconsistencies in the evidence of the state witnesses. I have gone through the record and noted that the inconsistencies alluded to by the Appellant relate to the testimonies of PW1, PW2 and PW3 on the date of the incident only. I believe the same was minor and did not go to the core of the matter. In the case of Twehangane Alfred vs. Uganda [2003] UGCA 6, it was held that the Court will ignore minor contradictions unless the Court thinks that they point to deliberate untruthfulness or if they do affect the main substance of the Prosecution’s case. In Richard Munene v Republic [2018] eKLR, the court held that not every inconsistency or contradiction is material.
b. Whether the sentence meted upon the Appellant was appropriate.
32. Section 3(3) of the Sexual Offences Act provides for a minimum sentence of ten years which may be enhanced to life imprisonment. The Appellant was sentenced to the bare minimum sentence provided for the offence of rape. The principles in the Supreme Court decision in Muruatetu case are not applicable in Sexual offence. In Hassan Kahindi Katana alias Kinungi & Another v Republic Court of Appeal Malindi Criminal Appeal No.8/2019, it was held that the holding in Muruatetu’s case is not applicable to Sexual Offences. The Accused was ordered to serve the minimum sentence provided for the offence. The trial magistrate did not error in anyway by imposing the minimum sentence provided for.
33. The Respondent has sought for the enhancement of the Appellant’s sentence to 20 years. I have not encountered any cross petition nor any notice of enhancement of sentence wherefore I will decline that invitation to enhance the sentence.
H. CONCLUSION
34. After evaluating the evidence and for the reasons stated above, I find that the evidence adduced by the respondent had proved the charge against the Appellant beyond any reasonable doubt. The conviction of the Appellant was proper and so was his sentence.
35. This appeal is dismissed. I hereby uphold both the conviction and sentence.
Orders accordingly.
Dated and delivered at Bungoma this 18th day of December 2025
M.S. SHARIFF
JUDGE
In the presence of :
Appellant
Ms Kibet for the Respondent
Peter Machoni – Court Assistant