[1] This is an appeal by Evans Okoth Arum alias Daddy (hereinafter, the appellant) against conviction and sentence rendered in Oyugis Senior Principal Magistrates’ Criminal Case No. 362 of 2022: Republic v Evans Okoth Arum alias Daddy . The appellant had been charged in that case with two substantive counts. In the first count, he was charged with robbery with violence, contrary to Section 295 as read with Section 296(2) of the Penal Code, Cap 63 of the Laws of Kenya; while in Count II, the appellant was charged with the offence of rape contrary to Section 3(1)(a)(b) as read with Section 3(2) of the Sexual Offences Act No. 3 of 2006 .
[2] The particulars of Count I were that on the 20 th day of October, 2022 at Wangchieng Location in Rachuonyo North Sub County, within Homa Bay County, being armed with a dangerous weapon namely panga, he robbed Molly Awuor of one mobile phone make Itel valued at Kshs. 4,000/= and immediately after the time of such robbery wounded the said Molly Awuor . The particulars of Count II were that on the 20 th day of October, 2022 at Wangchieng location in Rachuonyo North Sub County, within Homabay County, intentionally and unlawfully used his penis to penetrate the vagina of Molly Awuor without her consent.
[3] The appellant pleaded not guilty to both counts, and the matter proceeded to full trial. Upon conclusion, the lower court found him guilty and convicted him. He was consequently sentenced to 20 years’ imprisonment on Count I and 10 years’ imprisonment on Count II, with the sentences ordered to run concurrently.
[4] Being aggrieved by his conviction and sentence, the appellant preferred an appeal based on the following grounds :
[a] That the learned trial magistrate erred in law by failing to uphold the trial rights of the appellant particularly the right to legal representation as enshrined in the Constitution of Kenya 2010 given the gravity of the offence of Robbery with violence.
[b] That in finding that the charge of rape was sufficiently proved, the learned magistrate erred by failing to reconcile the link between the nature of the injuries allegedly suffered by the complainant and the alleged causation taking into account that the medical exhibits tendered by the Prosecution confirmed that there were visible bruises/injuries seen on the external genitalia.
[c] That the learned trial magistrate erred in law by failing to warn himself of the danger of relying on the evidence of a single identifying/recognizing witness and the need to test with the highest degree of caution such evidence.
[d] That the learned trial magistrate erred in law in finding and holding that an offence under Section 3(1)(a)(b) as read with Section 3(2) of the Sexual Offences Act 2006 was proved without paying regard to the medical evidence adduced at the instance of the Prosecution which clearly stated that the blood stains noted were as a result of the complainant’s menses and not forced penetration by the appellant.
[e] That the learned magistrate erred in law and in fact by placing reliance on the evidence of the prosecution in total disregard of the evidence tendered by the appellant without assigning any credible reason at all and thereby denying the appellant a fair hearing contrary to the provisions of Article 50 of the Constitution of Kenya, 2010.
[f] That, in holding that the defence by the appellant was improbable, the learned trial magistrate misconceived and misapprehended the standard of proof and on whom the same lay, consequently the learned trial magistrate is guilty of shifting the burden of proof to the appellant contrary to established legal principles.
[g] That the sentence meted out against the appellant was harsh, cruel, unreasonable and contrary to set principles of the law.
[5] Therefore, the appellant prayed that his appeal be allowed and the conviction and sentence dated 8 th March 2024 be quashed, varied or set aside. He also prayed that he be set at liberty forthwith.
[6] Directions were given herein on 2 nd May 2024 that the appeal be canvassed by way of written submissions. The record shows that although the respondent complied, the appellant did not.
[7] In its submissions dated 30 th January 2025, the respondent submitted on the elements of the charges that needed to be proved before the lower court and urged the Court to find that the prosecution proved its case beyond reasonable doubt through the consistent and corroborated testimony of five witnesses. Counsel for the respondent submitted that the complainant, who knew the appellant well, positively identified him as the perpetrator of the offence which occurred in broad daylight at around 2:00 p.m., thereby eliminating any possibility of mistaken identity. Counsel further pointed out that the stolen mobile phone was recovered from the appellant’s pocket upon his arrest, as confirmed by PW2 and PW3, and was positively identified by the complainant as her property.
[8] Regarding the appellant’s claim that he was denied legal representation, the respondent argued that under Section 40 of the Legal Aid Act, a person seeking legal aid must make a written application, which may be granted or denied. It was further noted that, in practice, free legal representation has largely been extended to murder suspects.
[9] On the issue of identification by a single witness, the respondent submitted that in this case, the complainant’s recognition of the appellant, coupled with the recovery of the stolen phone, sufficiently linked him to the offence.
[10] It was further the submission of the respondent that the offence of rape was equally proved by oral testimony of the victim who narrated how she was assaulted and raped by the appellant before he left with her phone. Counsel added that the offence of rape can be proved by oral evidence of the victim or by circumstantial evidence in the absence of medical evidence; and that in this instance sufficient evidence was adduced in proof of the offence of rape.
[11] On the sentence imposed on the appellant, counsel for the respondent submitted that the same was lawful. It was further argued that sentencing is a matter of judicial discretion, and the Court was urged not to interfere, as there was no indication that the trial court acted contrary to established legal principles. Thus, the respondent prayed for the dismissal of the appeal.
[12] This being a first appeal, it is expected of this Court to subject the evidence that was presented before the lower court to a fresh analysis and evaluation for it to come to its own conclusions thereon. In Okeno v Republic [1972] EA 32 the Court of Appeal for East Africa made this point as follows:
"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 to the appellate court's own decision on the whole evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions...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 conclusion; 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..."
[13] Accordingly, I have perused the record of the lower court and noted that Molly Awuor, the complainant, testified as PW1. She stated that she lives in Kachieng, where she worked as a farmer, and had known the appellant for about three months. She stated that on 20 th October 2022, at around 2:00 p.m., while she was resting under a tree, she felt someone grab her by the neck. Initially, she thought it was her husband, but upon looking up, she realized it was the appellant. A struggle ensued, during which the appellant overpowered her and removed her pant and had sex with her forcefully. He strangled her while armed with a panga and threatened to kill her if she raised an alarm.
[14] The complainant further stated that after he was done, the appellant stood up, picked up a lesso and a sweater, covered her, and instructed her to remain silent. After he walked away, she managed to compose herself and attempted to call for help when she discovered that her phone was missing. PW1 testified that she went to her neighbour, Magdaline, and informed her of the incident, after which they tried to look for the appellant but were unsuccessful. She then proceeded to her brother-in-law’s house, narrated what had happened, and later went to the village elder, who accompanied her back home.
[15] The complainant stated that she sought medical attention and thereafter reported the matter to the Police. She availed the treatment notes and laboratory report before the lower court as exhibits. She also identified the P3 issued to her which documents were produced as exhibits in the lower court matter.
[16] The complainant also testified that her brother-in-law later informed her that he had found the accused. She went to the location, identified him, and he was arrested and taken to the police station. PW1 also mentioned that, at the time of his arrest, the appellant was found in possession of her phone, which she personally identified.
[17] The complainant’s brother-in-law, Jackonea Ochieng , testified before the lower court as PW2. His evidence was that on 20 th October 2022, while he was at home resting, his sister-in-law, Molly Awuor, came and informed him that she had been sexually assaulted by one “Daddy,” the son of Arum. He advised her to report the matter to the village elder and gave her some money to enable her to go to the hospital.
[18] PW2 further stated that they began searching for the appellant and found him the following day harvesting sand. In the company of Geoffrey Ouma (PW3), they asked him whether he had the complainant’s phone, which he denied. They then arrested him and compelled him to remove a phone from his pocket. The phone, which was black in colour and had a cracked screen, was positively identified by the complainant. The village elder was called, and the appellant was handed over to him. PW2 added that he had known appellant since birth. He further stated that he was not aware of any romantic relationship between the complainant and the appellant that may have turned sour.
[19] Geoffrey Ochieng (PW3) also testified before the lower court. He confirmed that on 21 st October 2022, while on his way to the shop with PW2, PW2 informed him that “Daddy” Arum had sexually assaulted his sister-in-law. PW2 requested him to accompany him to the sand harvesting site to look for “Daddy” a person he had known since his birth. He identified him before the lower court as the accused person.
[20] PW3 further stated that when they arrived at the sand harvesting site, they found the appellant and called him aside to ask about the phone allegedly stolen from the complainant. He added that the appellant denied having it, but upon being searched, he was found with the phone. PW3 also confirmed that the complainant was called to the scene and she positively identified the phone as hers.
[21] PW3 also mentioned that the appellant initially claimed that the phone had been given to him by someone else, but on their way to look for that person, the appellant changed his story. He was then handed over to the village elder and the chief. PW3 identified the phone as black in colour with a cracked screen.
[22] The clinical officer, Ernest Omollo , who attended to the complainant also testified before the lower court as PW4. He confirmed that he examined the complainant when she visited Kendu Sub-County Hospital (KSCH) on 20 th October 2022, after which a P3 form was completed. His findings were that the genitalia were normal, the hymen was broken but not recently, and there was vaginal bleeding consistent with menstruation. He further stated that HIV, pregnancy, and syphilis tests were conducted. He produced the P3 form as the Prosecution’s Exhibit 1, the treatment notes as Exhibit 2, the laboratory report as P Exhibit 3, and PRC form as P Exhibit 4 before the lower court.
[23] The last prosecution witness was the investigating officer, PC Jane Wayooga (PW5). She testified that on 22 nd October, 2022 the complainant reported a case of robbery with violence, alleging that the accused went to her home while she was asleep, attacked and raped her, and thereafter stole her phone. She stated that she recorded statements from the complainant and other witnesses after which she visited the scene with her colleagues. It was further the evidence of PW5 that the appellant was taken to the police station the following day by members of the public and that a mobile phone identified as the complainant’s was recovered from him. She produced the mobile phone before the lower court as Exhibit 6.
[24] Upon being placed on his defence, the appellant denied the charges and explained that he was at home on the 20 th October 2022 at around 4:00 p.m. Regarding the events of 21 st October 2022, he stated that he was at his workplace when some people arrested, assaulted and accused him of having robbed the complainant. He also accused the police officers of assault and contended that they coerced him into making an admission of the allegations levelled against him. He stated that he was thereafter charged with robbery with violence and rape. He denied the charges or any knowledge of the complainant.
[25] In the light of the foregoing summary, the issues for determination in this appeal are:
[a] Whether the charges of rape and robbery with violence were proved beyond reasonable doubt.
[b] Whether the Appellant’s right to legal representation under the constitution were violated.
[c] Whether the sentence was harsh, unreasonable and contrary to set principles of law.
A. Whether the charges of rape and robbery with violence were proved beyond reasonable doubt:
[26] The Appellant was charged with rape under Section 3(1) (a) (b) as read with Section 3(2) of the Sexual Offences Act. Section 3 of the Sexual Offences Act provides: -
(1) 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.
(2) In this section the term "intentionally and unlawfully" has the meaning assigned to it in section 43 of this Act.
(3) 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.
[27] From the above definition, the ingredients of the offence of rape, include proof of penetration, proof of the perpetrator and proof that the consent was not given or obtained by force, or by means of threats or intimidation.
[a] On identification:
[28] In the case of Wamunga v Republic (Criminal Appeal 20 of 1989) [1989] KECA 47 (KLR) (22 June 1989) (Judgment), the court of Appeal held: -
“It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial Court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction…”
[29] Further, in the case of Kihonge v Republic ( Criminal Appeal 30 of 2020) [2023] KEHC 26127 (KLR) (28 November 2023) (Judgment), the court while citing R V Turnbull [1976] 63 Cr. App R. 132 summarized factors to be considered in instances of alleged identification as follows:
[a] The length of time the witness had the accused under observation and in what distance and light.
[b] Whether observation of the witness was impeded in any way.
[c] Whether the witness had seen the accused before, and if so, how often.
[d] The length of time that elapsed between the original observation and the subsequent identification to the police.
[e] Whether there is any material discrepancy between the description given by the witness and the actual appearance of the accused.
[30] In this case, the complainant stated that the incident took place in broad daylight at about 2.00 p.m. while she was taking a nap outside the house under a tree. She also stated that she had known the accused for about three (3) months prior to the incident. There is also credible evidence that she immediately reported the attack to PW2 and identified the perpetrator by his alias, “Daddy.”
[31] This was therefore a case of recognition and is therefore the evidence of identification was more reliable. In Anjononi & 2 Others v Republic [1980] eKLR the Court of Appeal pointed out that:
“…recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other…”
[32] I am therefore satisfied that the appellant was positively identified and placed as the scene of crime by the evidence of PW1. That she was in no doubt about the identity of the offence is further demonstrated by the fact that she immediately reported the matter to her brother in law and mentioned the name of the appellant. It was on that basis that PW2 looked for and caused the arrest of the appellant.
[b] On penetration:
[33] The evidence of forceful penetration was given by the complainant. Although the appellant faulted the trial court for relying on the evidence of single witness, Section 124 of the Evidence Act provides:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him.
Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
[34] The proviso to Section 124 of the Evidence Act empowers the court, in criminal cases involving sexual offences, to convict on the sole testimony of the victim, provided the court records its reasons and is satisfied that the victim is telling the truth. This provision directly addresses the requirement for corroboration. Further, the Court of Appeal in Erick Onyango Ondeng’ v Republic [2014] KECA 523 (KLR), the court held:
“…the proviso to section 124 of the Evidence Act and the medical evidence must be borne in mind as well Section 143 of the Evidence Act (Cap 80) which provides that, in the absence of any requirement by provision of law, no particular number of witnesses shall be required for the proof of any fact…”
[35] The complainant’s evidence was lent credence by the evidence of PW4, who examined her and filled the P3 Form exhibited before the lower court at the Prosecutions Exhibit 1. In his opinion, the complainant had been raped notwithstanding that there were no visible injuries in her genitalia. The appellant took issue with the fact that the medical evidence did not reveal fresh injuries. While it is true that PW4 testified that the complainant’s genitalia appeared normal and that the fresh blood observed was consistent with menstruation, medical evidence per se is not the only credible proof of rape. Authorities abound that the fact of rape can be proved even in the absence of medical evidence. For instance, in Mark Oiruri Mose v Republic [2013] eKLR the Court of Appeal stated thus:
“…Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ ….” (emphasis added).
[36] Similarly, in Erick Onyango Ondeng v Republic [2014] eKLR held as such on the aspect of penetration:
"In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured."
[37] Lastly, in Kassim Ali v Republic [2006] KECA 156 (KLR) again the Court of Appeal pointed out that:
“…the commission of a sexual offence can be properly corroborated by circumstantial evidence (see Ongweya v. Republic [1964] EA 129).
So the absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence .
[38] Consequently, the complainant’s consistent and unshaken testimony clearly established that she was raped by the accused, as her account of events remained firm and was promptly reported to PW2 and PW5.
[39] The evidence on record shows that at the time she was raped, the appellant also took her mobile phone. On that account he was also charged with robber with violence contrary to Section 296(2) of the Penal Code. That provision states:
"If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death."
[40] In the premises, the Prosecution was under obligation to prove any of the following key ingredients of the charge:
[a] That the Appellant was armed with a dangerous or offensive weapon or instrument; or
[b] That he was accompanied by one or more other person or persons; or
[c] That immediately before or immediately after the time of the robbery, he wounded, struck or used any other personal violence against the Complainant;
[41] The prosecution demonstrated before the lower court that the appellant was armed with a panga, that he threatened to kill the complainant and that he violently raped her. It is also noteworthy that the complainant’s mobile phone was recovered from the appellant’s possession the following day.
[42] In the premises, I am satisfied that credible evidence was adduced by the prosecution to prove the offences of rape and robbery with violence to the requisite standard.
B. Whether the Appellant’s right to legal representation under the constitution were violated:
[43] The Appellant complained that the trial court did not uphold his trial rights, and in particular, his right to legal representation, given the gravity of the offence of robbery with violence. Article 50 (2) (g) (h) of the Constitution provides: -
(2) Every accused person has the right to a fair trial, which includes the right—
(a)….
(g)to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h)to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
[44] Hence, Section 43 of the Legal Aid Act provides: -
(1) A court before which an unrepresented accused person is presented shall—
(a) promptly inform the accused of his or her right to legal representation;
(b) if substantial injustice is likely to result, promptly inform the accused of the right to have an advocate assigned to him or her; and
(c) inform the Service to provide legal aid to the accused person.
(1A) In determining whether substantial injustice referred to in paragraph (1) (b) likely to occur, the court shall take into consideration—
(a) the severity of the charge and sentence;
(b) the complexity of the case; and
(c) the capacity of the accused to defend themselves.
(2) The Service shall provide legal aid to the accused person in accordance with this Act.
(3) Where a child is brought before a court in proceedings under the Children Act (Cap. 141) or any other written law, the court may where the child is unrepresented, order the Service to provide legal representation for the child.
(4) Where an accused person is brought before the court and is charged with an offence punishable by death, the court shall, where the accused is unrepresented, order the Service to provide legal representation for the accused.
(5) The provision of legal representation under sub-section (4) shall be subject to the criteria for eligibility for legal aid under this Act.
(6) Despite the provisions of this section, lack of legal representation shall not be a bar to the continuation of proceedings against a person.
[45] The duty of the court is that it must promptly inform the accused of their right to be represented by an advocate of their choice and, where substantial injustice is likely to occur, of the right to have an advocate assigned at the State’s expense. In such cases, the court is required to notify the National Legal Aid Service to provide legal assistance. In determining whether substantial injustice is likely, the court must consider the seriousness of the charge and potential sentence, the complexity of the case, and the accused’s ability to effectively conduct their own defence.
[46] As was acknowledged by Lord Denning in Pett v Greyhound Racing Association [1968] 2 ALL E. R 545 , at 549:
“It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favor or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it everyday. A magistrate says to a man: ‘you can ask any questions you like;’ whereupon the man immediately stars to make a speech. If justice is to be done, he ought to have the help of someone to speak for him; and who better than a lawyer who has been trained for the task.”
[47] The Court of Appeal in the case of David Njoroge Macharia v Republic [2011] KECA 406 (KLR) , held: -
“Under the new Constitution, state funded legal representation is a right in certain instances. Article 50 (1) provides that an accused shall have an advocate assigned to him by the State and at state expense, if substantial injustice would otherwise result (emphasis added). Substantial injustice is not defined under the Constitution, however, provisions of international conventions that Kenya is signatory to are applicable by virtue of Article 2 (6) . Therefore provisions of the ICCPR and the commentaries by the Human Rights Committee may provide instances where legal aid is mandatory.
We are of the considered view that in addition to situations where “substantial injustice would otherwise result”, persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expense. We would not go so far as to suggest that every accused person convicted of a capital offence since the coming into effect of the new Constitution would automatically be entitled to a re-trial where no such legal representation was provided. The reasons are that, firstly, the provisions of the new Constitution will not apply retroactively, and secondly every case must be decided on its own merit to determine if there was serious prejudice occasioned by reason of such omission…”
[48] Undoubtedly, the right to legal representation is pivotal to a fair trial. Nevertheless, the right is not open-ended. This much the Supreme Court made clear in the case of Republic v Chengo & 2 others ( Petition 5 of 2015) [2017] KESC 15 (KLR) (26 May 2017) (Judgment) in which it held:
“87. Article 50(2)(h) of the Constitution provides that “[e]very accused person has the right to a fair trial, which includes the right…to have an advocate assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly.” It does not define what “substantial injustice” means. However, in David Macharia Njoroge v. Republic , ( supra ), the Court of Appeal held that “ substantial injustice ” results to “ persons accused of capital offences ” with “ loss of life ” as the penalty if they have no counsel during their trials. We do not entirely concur with that holding, as it has the effect of limiting the right to legal representation in criminal trials only to cases where the accused person is charged with a capital offence. The operative words in article 50 (2) (h) are “if substantial injustice would otherwise result….” While it is therefore undeniable that a person facing a death penalty and who cannot afford legal representation is likely to suffer substantial injustice during his trial; the protection embedded in article 50 (2) (h) goes beyond capital offence trials. The Court of Appeal indeed appears to have embraced this reasoning in a recent decision in Thomas Alugha Ndegwa v. Republic ; C.A No. 2 of 2004, when it allowed an application for legal representation by the appellant who had been convicted of defilement and sentenced to life imprisonment.
88.In addition to the above, we do not agree with the Court of Appeal’s holding in the instant case to the effect that the rig
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[2] The particulars of Count I were that on the 20 th day of October, 2022 at Wangchieng Location in Rachuonyo North Sub County, within Homa Bay County, being armed with a dangerous weapon namely panga, he robbed Molly Awuor of one mobile phone make Itel valued at Kshs. 4,000/= and immediately after the time of such robbery wounded the said Molly Awuor . The particulars of Count II were that on the 20 th day of October, 2022 at Wangchieng location in Rachuonyo North Sub County, within Homabay County, intentionally and unlawfully used his penis to penetrate the vagina of Molly Awuor without her consent.
[3] The appellant pleaded not guilty to both counts, and the matter proceeded to full trial. Upon conclusion, the lower court found him guilty and convicted him. He was consequently sentenced to 20 years’ imprisonment on Count I and 10 years’ imprisonment on Count II, with the sentences ordered to run concurrently.
[4] Being aggrieved by his conviction and sentence, the appellant preferred an appeal based on the following grounds :
[a] That the learned trial magistrate erred in law by failing to uphold the trial rights of the appellant particularly the right to legal representation as enshrined in the Constitution of Kenya 2010 given the gravity of the offence of Robbery with violence.
[b] That in finding that the charge of rape was sufficiently proved, the learned magistrate erred by failing to reconcile the link between the nature of the injuries allegedly suffered by the complainant and the alleged causation taking into account that the medical exhibits tendered by the Prosecution confirmed that there were visible bruises/injuries seen on the external genitalia.
[c] That the learned trial magistrate erred in law by failing to warn himself of the danger of relying on the evidence of a single identifying/recognizing witness and the need to test with the highest degree of caution such evidence.
[d] That the learned trial magistrate erred in law in finding and holding that an offence under Section 3(1)(a)(b) as read with Section 3(2) of the Sexual Offences Act 2006 was proved without paying regard to the medical evidence adduced at the instance of the Prosecution which clearly stated that the blood stains noted were as a result of the complainant’s menses and not forced penetration by the appellant.
[e] That the learned magistrate erred in law and in fact by placing reliance on the evidence of the prosecution in total disregard of the evidence tendered by the appellant without assigning any credible reason at all and thereby denying the appellant a fair hearing contrary to the provisions of Article 50 of the Constitution of Kenya, 2010.
[f] That, in holding that the defence by the appellant was improbable, the learned trial magistrate misconceived and misapprehended the standard of proof and on whom the same lay, consequently the learned trial magistrate is guilty of shifting the burden of proof to the appellant contrary to established legal principles.
[g] That the sentence meted out against the appellant was harsh, cruel, unreasonable and contrary to set principles of the law.
[5] Therefore, the appellant prayed that his appeal be allowed and the conviction and sentence dated 8 th March 2024 be quashed, varied or set aside. He also prayed that he be set at liberty forthwith.
[6] Directions were given herein on 2 nd May 2024 that the appeal be canvassed by way of written submissions. The record shows that although the respondent complied, the appellant did not.
[7] In its submissions dated 30 th January 2025, the respondent submitted on the elements of the charges that needed to be proved before the lower court and urged the Court to find that the prosecution proved its case beyond reasonable doubt through the consistent and corroborated testimony of five witnesses. Counsel for the respondent submitted that the complainant, who knew the appellant well, positively identified him as the perpetrator of the offence which occurred in broad daylight at around 2:00 p.m., thereby eliminating any possibility of mistaken identity. Counsel further pointed out that the stolen mobile phone was recovered from the appellant’s pocket upon his arrest, as confirmed by PW2 and PW3, and was positively identified by the complainant as her property.
[8] Regarding the appellant’s claim that he was denied legal representation, the respondent argued that under Section 40 of the Legal Aid Act, a person seeking legal aid must make a written application, which may be granted or denied. It was further noted that, in practice, free legal representation has largely been extended to murder suspects.
[9] On the issue of identification by a single witness, the respondent submitted that in this case, the complainant’s recognition of the appellant, coupled with the recovery of the stolen phone, sufficiently linked him to the offence.
[10] It was further the submission of the respondent that the offence of rape was equally proved by oral testimony of the victim who narrated how she was assaulted and raped by the appellant before he left with her phone. Counsel added that the offence of rape can be proved by oral evidence of the victim or by circumstantial evidence in the absence of medical evidence; and that in this instance sufficient evidence was adduced in proof of the offence of rape.
[11] On the sentence imposed on the appellant, counsel for the respondent submitted that the same was lawful. It was further argued that sentencing is a matter of judicial discretion, and the Court was urged not to interfere, as there was no indication that the trial court acted contrary to established legal principles. Thus, the respondent prayed for the dismissal of the appeal.
[12] This being a first appeal, it is expected of this Court to subject the evidence that was presented before the lower court to a fresh analysis and evaluation for it to come to its own conclusions thereon. In Okeno v Republic [1972] EA 32 the Court of Appeal for East Africa made this point as follows:
"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 to the appellate court's own decision on the whole evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions...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 conclusion; 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..."
[13] Accordingly, I have perused the record of the lower court and noted that Molly Awuor, the complainant, testified as PW1. She stated that she lives in Kachieng, where she worked as a farmer, and had known the appellant for about three months. She stated that on 20 th October 2022, at around 2:00 p.m., while she was resting under a tree, she felt someone grab her by the neck. Initially, she thought it was her husband, but upon looking up, she realized it was the appellant. A struggle ensued, during which the appellant overpowered her and removed her pant and had sex with her forcefully. He strangled her while armed with a panga and threatened to kill her if she raised an alarm.
[14] The complainant further stated that after he was done, the appellant stood up, picked up a lesso and a sweater, covered her, and instructed her to remain silent. After he walked away, she managed to compose herself and attempted to call for help when she discovered that her phone was missing. PW1 testified that she went to her neighbour, Magdaline, and informed her of the incident, after which they tried to look for the appellant but were unsuccessful. She then proceeded to her brother-in-law’s house, narrated what had happened, and later went to the village elder, who accompanied her back home.
[15] The complainant stated that she sought medical attention and thereafter reported the matter to the Police. She availed the treatment notes and laboratory report before the lower court as exhibits. She also identified the P3 issued to her which documents were produced as exhibits in the lower court matter.
[16] The complainant also testified that her brother-in-law later informed her that he had found the accused. She went to the location, identified him, and he was arrested and taken to the police station. PW1 also mentioned that, at the time of his arrest, the appellant was found in possession of her phone, which she personally identified.
[17] The complainant’s brother-in-law, Jackonea Ochieng , testified before the lower court as PW2. His evidence was that on 20 th October 2022, while he was at home resting, his sister-in-law, Molly Awuor, came and informed him that she had been sexually assaulted by one “Daddy,” the son of Arum. He advised her to report the matter to the village elder and gave her some money to enable her to go to the hospital.
[18] PW2 further stated that they began searching for the appellant and found him the following day harvesting sand. In the company of Geoffrey Ouma (PW3), they asked him whether he had the complainant’s phone, which he denied. They then arrested him and compelled him to remove a phone from his pocket. The phone, which was black in colour and had a cracked screen, was positively identified by the complainant. The village elder was called, and the appellant was handed over to him. PW2 added that he had known appellant since birth. He further stated that he was not aware of any romantic relationship between the complainant and the appellant that may have turned sour.
[19] Geoffrey Ochieng (PW3) also testified before the lower court. He confirmed that on 21 st October 2022, while on his way to the shop with PW2, PW2 informed him that “Daddy” Arum had sexually assaulted his sister-in-law. PW2 requested him to accompany him to the sand harvesting site to look for “Daddy” a person he had known since his birth. He identified him before the lower court as the accused person.
[20] PW3 further stated that when they arrived at the sand harvesting site, they found the appellant and called him aside to ask about the phone allegedly stolen from the complainant. He added that the appellant denied having it, but upon being searched, he was found with the phone. PW3 also confirmed that the complainant was called to the scene and she positively identified the phone as hers.
[21] PW3 also mentioned that the appellant initially claimed that the phone had been given to him by someone else, but on their way to look for that person, the appellant changed his story. He was then handed over to the village elder and the chief. PW3 identified the phone as black in colour with a cracked screen.
[22] The clinical officer, Ernest Omollo , who attended to the complainant also testified before the lower court as PW4. He confirmed that he examined the complainant when she visited Kendu Sub-County Hospital (KSCH) on 20 th October 2022, after which a P3 form was completed. His findings were that the genitalia were normal, the hymen was broken but not recently, and there was vaginal bleeding consistent with menstruation. He further stated that HIV, pregnancy, and syphilis tests were conducted. He produced the P3 form as the Prosecution’s Exhibit 1, the treatment notes as Exhibit 2, the laboratory report as P Exhibit 3, and PRC form as P Exhibit 4 before the lower court.
[23] The last prosecution witness was the investigating officer, PC Jane Wayooga (PW5). She testified that on 22 nd October, 2022 the complainant reported a case of robbery with violence, alleging that the accused went to her home while she was asleep, attacked and raped her, and thereafter stole her phone. She stated that she recorded statements from the complainant and other witnesses after which she visited the scene with her colleagues. It was further the evidence of PW5 that the appellant was taken to the police station the following day by members of the public and that a mobile phone identified as the complainant’s was recovered from him. She produced the mobile phone before the lower court as Exhibit 6.
[24] Upon being placed on his defence, the appellant denied the charges and explained that he was at home on the 20 th October 2022 at around 4:00 p.m. Regarding the events of 21 st October 2022, he stated that he was at his workplace when some people arrested, assaulted and accused him of having robbed the complainant. He also accused the police officers of assault and contended that they coerced him into making an admission of the allegations levelled against him. He stated that he was thereafter charged with robbery with violence and rape. He denied the charges or any knowledge of the complainant.
[25] In the light of the foregoing summary, the issues for determination in this appeal are:
[a] Whether the charges of rape and robbery with violence were proved beyond reasonable doubt.
[b] Whether the Appellant’s right to legal representation under the constitution were violated.
[c] Whether the sentence was harsh, unreasonable and contrary to set principles of law.
A. Whether the charges of rape and robbery with violence were proved beyond reasonable doubt:
[26] The Appellant was charged with rape under Section 3(1) (a) (b) as read with Section 3(2) of the Sexual Offences Act. Section 3 of the Sexual Offences Act provides: -
(1) 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.
(2) In this section the term "intentionally and unlawfully" has the meaning assigned to it in section 43 of this Act.
(3) 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.
[27] From the above definition, the ingredients of the offence of rape, include proof of penetration, proof of the perpetrator and proof that the consent was not given or obtained by force, or by means of threats or intimidation.
[a] On identification:
[28] In the case of Wamunga v Republic (Criminal Appeal 20 of 1989) [1989] KECA 47 (KLR) (22 June 1989) (Judgment), the court of Appeal held: -
“It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial Court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction…”
[29] Further, in the case of Kihonge v Republic ( Criminal Appeal 30 of 2020) [2023] KEHC 26127 (KLR) (28 November 2023) (Judgment), the court while citing R V Turnbull [1976] 63 Cr. App R. 132 summarized factors to be considered in instances of alleged identification as follows:
[a] The length of time the witness had the accused under observation and in what distance and light.
[b] Whether observation of the witness was impeded in any way.
[c] Whether the witness had seen the accused before, and if so, how often.
[d] The length of time that elapsed between the original observation and the subsequent identification to the police.
[e] Whether there is any material discrepancy between the description given by the witness and the actual appearance of the accused.
[30] In this case, the complainant stated that the incident took place in broad daylight at about 2.00 p.m. while she was taking a nap outside the house under a tree. She also stated that she had known the accused for about three (3) months prior to the incident. There is also credible evidence that she immediately reported the attack to PW2 and identified the perpetrator by his alias, “Daddy.”
[31] This was therefore a case of recognition and is therefore the evidence of identification was more reliable. In Anjononi & 2 Others v Republic [1980] eKLR the Court of Appeal pointed out that:
“…recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other…”
[32] I am therefore satisfied that the appellant was positively identified and placed as the scene of crime by the evidence of PW1. That she was in no doubt about the identity of the offence is further demonstrated by the fact that she immediately reported the matter to her brother in law and mentioned the name of the appellant. It was on that basis that PW2 looked for and caused the arrest of the appellant.
[b] On penetration:
[33] The evidence of forceful penetration was given by the complainant. Although the appellant faulted the trial court for relying on the evidence of single witness, Section 124 of the Evidence Act provides:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him.
Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
[34] The proviso to Section 124 of the Evidence Act empowers the court, in criminal cases involving sexual offences, to convict on the sole testimony of the victim, provided the court records its reasons and is satisfied that the victim is telling the truth. This provision directly addresses the requirement for corroboration. Further, the Court of Appeal in Erick Onyango Ondeng’ v Republic [2014] KECA 523 (KLR), the court held:
“…the proviso to section 124 of the Evidence Act and the medical evidence must be borne in mind as well Section 143 of the Evidence Act (Cap 80) which provides that, in the absence of any requirement by provision of law, no particular number of witnesses shall be required for the proof of any fact…”
[35] The complainant’s evidence was lent credence by the evidence of PW4, who examined her and filled the P3 Form exhibited before the lower court at the Prosecutions Exhibit 1. In his opinion, the complainant had been raped notwithstanding that there were no visible injuries in her genitalia. The appellant took issue with the fact that the medical evidence did not reveal fresh injuries. While it is true that PW4 testified that the complainant’s genitalia appeared normal and that the fresh blood observed was consistent with menstruation, medical evidence per se is not the only credible proof of rape. Authorities abound that the fact of rape can be proved even in the absence of medical evidence. For instance, in Mark Oiruri Mose v Republic [2013] eKLR the Court of Appeal stated thus:
“…Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ ….” (emphasis added).
[36] Similarly, in Erick Onyango Ondeng v Republic [2014] eKLR held as such on the aspect of penetration:
"In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured."
[37] Lastly, in Kassim Ali v Republic [2006] KECA 156 (KLR) again the Court of Appeal pointed out that:
“…the commission of a sexual offence can be properly corroborated by circumstantial evidence (see Ongweya v. Republic [1964] EA 129).
So the absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence .
[38] Consequently, the complainant’s consistent and unshaken testimony clearly established that she was raped by the accused, as her account of events remained firm and was promptly reported to PW2 and PW5.
[39] The evidence on record shows that at the time she was raped, the appellant also took her mobile phone. On that account he was also charged with robber with violence contrary to Section 296(2) of the Penal Code. That provision states:
"If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death."
[40] In the premises, the Prosecution was under obligation to prove any of the following key ingredients of the charge:
[a] That the Appellant was armed with a dangerous or offensive weapon or instrument; or
[b] That he was accompanied by one or more other person or persons; or
[c] That immediately before or immediately after the time of the robbery, he wounded, struck or used any other personal violence against the Complainant;
[41] The prosecution demonstrated before the lower court that the appellant was armed with a panga, that he threatened to kill the complainant and that he violently raped her. It is also noteworthy that the complainant’s mobile phone was recovered from the appellant’s possession the following day.
[42] In the premises, I am satisfied that credible evidence was adduced by the prosecution to prove the offences of rape and robbery with violence to the requisite standard.
B. Whether the Appellant’s right to legal representation under the constitution were violated:
[43] The Appellant complained that the trial court did not uphold his trial rights, and in particular, his right to legal representation, given the gravity of the offence of robbery with violence. Article 50 (2) (g) (h) of the Constitution provides: -
(2) Every accused person has the right to a fair trial, which includes the right—
(a)….
(g)to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h)to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
[44] Hence, Section 43 of the Legal Aid Act provides: -
(1) A court before which an unrepresented accused person is presented shall—
(a) promptly inform the accused of his or her right to legal representation;
(b) if substantial injustice is likely to result, promptly inform the accused of the right to have an advocate assigned to him or her; and
(c) inform the Service to provide legal aid to the accused person.
(1A) In determining whether substantial injustice referred to in paragraph (1) (b) likely to occur, the court shall take into consideration—
(a) the severity of the charge and sentence;
(b) the complexity of the case; and
(c) the capacity of the accused to defend themselves.
(2) The Service shall provide legal aid to the accused person in accordance with this Act.
(3) Where a child is brought before a court in proceedings under the Children Act (Cap. 141) or any other written law, the court may where the child is unrepresented, order the Service to provide legal representation for the child.
(4) Where an accused person is brought before the court and is charged with an offence punishable by death, the court shall, where the accused is unrepresented, order the Service to provide legal representation for the accused.
(5) The provision of legal representation under sub-section (4) shall be subject to the criteria for eligibility for legal aid under this Act.
(6) Despite the provisions of this section, lack of legal representation shall not be a bar to the continuation of proceedings against a person.
[45] The duty of the court is that it must promptly inform the accused of their right to be represented by an advocate of their choice and, where substantial injustice is likely to occur, of the right to have an advocate assigned at the State’s expense. In such cases, the court is required to notify the National Legal Aid Service to provide legal assistance. In determining whether substantial injustice is likely, the court must consider the seriousness of the charge and potential sentence, the complexity of the case, and the accused’s ability to effectively conduct their own defence.
[46] As was acknowledged by Lord Denning in Pett v Greyhound Racing Association [1968] 2 ALL E. R 545 , at 549:
“It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favor or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it everyday. A magistrate says to a man: ‘you can ask any questions you like;’ whereupon the man immediately stars to make a speech. If justice is to be done, he ought to have the help of someone to speak for him; and who better than a lawyer who has been trained for the task.”
[47] The Court of Appeal in the case of David Njoroge Macharia v Republic [2011] KECA 406 (KLR) , held: -
“Under the new Constitution, state funded legal representation is a right in certain instances. Article 50 (1) provides that an accused shall have an advocate assigned to him by the State and at state expense, if substantial injustice would otherwise result (emphasis added). Substantial injustice is not defined under the Constitution, however, provisions of international conventions that Kenya is signatory to are applicable by virtue of Article 2 (6) . Therefore provisions of the ICCPR and the commentaries by the Human Rights Committee may provide instances where legal aid is mandatory.
We are of the considered view that in addition to situations where “substantial injustice would otherwise result”, persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expense. We would not go so far as to suggest that every accused person convicted of a capital offence since the coming into effect of the new Constitution would automatically be entitled to a re-trial where no such legal representation was provided. The reasons are that, firstly, the provisions of the new Constitution will not apply retroactively, and secondly every case must be decided on its own merit to determine if there was serious prejudice occasioned by reason of such omission…”
[48] Undoubtedly, the right to legal representation is pivotal to a fair trial. Nevertheless, the right is not open-ended. This much the Supreme Court made clear in the case of Republic v Chengo & 2 others ( Petition 5 of 2015) [2017] KESC 15 (KLR) (26 May 2017) (Judgment) in which it held:
“87. Article 50(2)(h) of the Constitution provides that “[e]very accused person has the right to a fair trial, which includes the right…to have an advocate assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly.” It does not define what “substantial injustice” means. However, in David Macharia Njoroge v. Republic , ( supra ), the Court of Appeal held that “ substantial injustice ” results to “ persons accused of capital offences ” with “ loss of life ” as the penalty if they have no counsel during their trials. We do not entirely concur with that holding, as it has the effect of limiting the right to legal representation in criminal trials only to cases where the accused person is charged with a capital offence. The operative words in article 50 (2) (h) are “if substantial injustice would otherwise result….” While it is therefore undeniable that a person facing a death penalty and who cannot afford legal representation is likely to suffer substantial injustice during his trial; the protection embedded in article 50 (2) (h) goes beyond capital offence trials. The Court of Appeal indeed appears to have embraced this reasoning in a recent decision in Thomas Alugha Ndegwa v. Republic ; C.A No. 2 of 2004, when it allowed an application for legal representation by the appellant who had been convicted of defilement and sentenced to life imprisonment.
88.In addition to the above, we do not agree with the Court of Appeal’s holding in the instant case to the effect that the rig
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