REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KABARNET
H.C.C.R. APPEAL No. E001 OF 2026
FELIX CHEMJOR KANGOGO………………..……………APPELLANT
=VERSUS=
REPUBLIC………………………………………………RESPONDENT
(Being an appeal against the conviction and sentence of 10 years on an offence of Rape contrary to section 3(1)(a)(b)(c)as read with section 3(3) of the Sexual Offences Act No.3 of 2006)
JUDGMENT
1. FELIX CHEMJOR KANGOGO was charged with Rape contrary to section 3(1),(a),(b),(c) as read with section 3(3) of the Sexual Offences Act No.3 of 2006. The particulars of the charge were that on the 29 th day of March,2025 at 1500hours at Chelenge Forest in Kaimugul Village, Ossen Location in Baringo North he caused his penis to penetrate the vagina of Gladys Cheragony an adult aged 50 years without her consent.
2. in the alternative the Appellant is charged with committing an indecent act with an adult contrary to section 11(a) of the Sexual offences Act No.3 of 2006. Particulars being that on the 29 th day of March,2025 at 1500 hours at Chelenge Forest in Kaimugul village, Ossen Location in Baringo North Sub-county within Baringo County, intentionally and unlawfully touched the vagina of Gladys Cheragony an adult aged 50 years.
3. He pleaded not guilty to all the charges .
4. The prosecution called five (5) witnesses and closed its case.
5. The appellant was placed on his defence and gave sworn testimony and did not call any witness.
6. In a judgment dated and delivered on 22 nd July,2025, the trial court found that the prosecution had proved the charge against the accused person beyond reasonable doubt. He was convicted and sentenced to 10 years imprisonment.
7. Aggrieved by the conviction and sentence the appellant lodged this appeal on the following grounds
i. That, the learned trial magistrate erred in law and facts by failing to note that the proof of the case beyond reasonable doubt did not meet the threshold to warrant any safe conviction.
ii. That the learned trial magistrate erred in law and fact by failing to point out the rebutted or rather displaced by the prosecution pursuant to the provisions of Section 309 of the criminal procedure Code.
iii. That, the learned trial magistrate erred in law and fact by failing to appreciate that the critical witnesses were not called and consequently failed to invoke the provisions of Section 150 of the criminal procedure code.
iv. That the learned trial magistrate erred in law and facts by imposing not only a harsh but excessive sentence based on the circumstances.
8. The Appellant sought that the appeal allowed the conviction quashed, the sentence set aside and he be set at liberty.
9. The appeal was canvassed by way of written submissions.
Appellant’s Submissions
10. The Appellant submits that the burden of proof in criminal cases never leaves the prosecution’s backyard. He relies on Woolmington Vs. DPP , R vs Kipkering Arap Koskei & Another [1949]16 EACA 135 and Republic vs Stephen Kiprotich Leting & 3 others Criminal Case No. 34 of 2008 [2009]eKLR .
11. The appellant challenges the doctor’s evidence on the ground that the complainant was an adult woman with grown children so the issue of a broken hymen could not arise. He argues that the evidence from the vaginal swabs collected from the complainant and the laboratory tests reports were not produced before the trial court to ascertain its findings. He submits that this was fatal to the case for the prosecution.
12. In addition, that the complainant reported that she had changed clothes and urinated before going to hospital destroying evidence. That this meant that there was no proof she was raped.
13. That there was contradiction on the color of the clothes the That PW 1 wore : that she said it was a yellow top but what was produced in court by PW 5 was a mud stained orange top..
14. It was his defence that the issue was a grudge over a debt of Ksh 450 over alcohol that he owed the complainant.
15. That he made a plausible defence which created and cast considerable doubt on the prosecution’s case and he should have been acquitted
16. Citing the provisions of section 143 of the Evidence Act which allows the Prosecution to decide the number of witnesses to , he argues that that does not relieve the prosecution of its duty of calling witnesses to support their case. That failure to call vital witnesses gives the court the leeway to presume that the evidence which has been withheld was unfavorable to the prosecution’s case. That this was enunciated in Bukenya & Another Vs Uganda[1972] E.A 549 and further in Juma Ngondia Vs. Republic (1982-88) KAR 450
17. The appellant contends that the prosecution failed to call the crucial prosecution witnesses who included the complainant’s daughter, complainant’s other children, village elder (Kiptoo), the rider and Police constable Fredrick Ayodo. That in the upshot, the prosecutions case was left with glaring gaps which the trial court did not attempt to reconcile to the prejudice of the Appellant.
18. It is the Appellant’s position that the trial magistrate erred by failing to invoke the provisions of section 150 of the Criminal Procedure Code to summon the five key witnesses and other critical witnesses despite their evidence being material in this case to the prejudice of the Appellant.
19. On the issue of sentence , the appellant submits that according to the Kenya Judiciary Sentencing Policy Guidelines 2016 and 2023, the sentence imposed must meet the following objectives in totality:-
1. Retribution.
2. Deterrence
3. Rehabilitation
4. Restorative justice.
20. He argues that that any sentence imposed ought to satisfy these parameters, and the court should take into consideration the spirit of the Constitution to move away from retributive justice to restorative justice. He submits that the sentence imposed by the trial court was excessive in the circumstances and has caused him a lot of trauma.
Prosecution’s Submissions
21. The Prosecution is opposed to the appeal and urges the court to uphold both the conviction and sentence. The prosecution has set the following issues for determination's:
a. Whether the Prosecution discharged its burden of proof to the required standard; and
b. Whether the sentence is excessive in the circumstances.
22. Citing Okeno v Republic [1972] EA 32 the Prosecution reminds the court that this being a first appeal, this Court is duty bound to reevaluate the entire evidence on record, subject it to a fresh and exhaustive analysis, and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify.
23. On whether the prosecution discharged its burden of proof to the required standard it is submitted that Section 3(1) of the Sexual Offences Act provides that a person commits an offence termed rape if: the person intentionally and unlawfully commits an act which causes penetration with their genital organs; the other person does not consent to the penetration; or the consent is obtained by force or by means of threats or intimidation of any kind. That the ingredients of rape are
5. Penetration;
6. Lack of consent; and
7. Identification .
24. On Penetration, the prosecution cites Section 2 of the Sexual Offences Act definition of penetration. That further, the Court of Appeal in Mark Oiruri Mose v Republic [2013] KECA 67 (KLR) while discussing what constitutes penetration.
In any event the offence is against penetration of a minor and penetration does not necessarily end in release of sperms into the victim. Many times the attacker does not fully complete 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.
25. That in the present case, PW1 stated that the Appellant told her that he wanted her body. That he then pushed her to into the forest and threatened to kill her if she dared to scream, that he removed her pants and had sex with her.
26. That PW1's testimony was corroborated by PW4 a qualified Clinical Officer from Kabartonjo Sub-county Referral Hospital who stated that examination revealed that PW1 had a discharge with a smell from her vagina . That Laboratory results showed that she had pus and epithelial cells, these findings were captured in the P3 form and treatment notes where the doctor concluded that PW1 was raped.
27. It is submitted that the Appellant in his defence stated there was nothing to show that he broke PW1's hymen in that that to establish the charge of rape, it is not necessary that the hymen must be broken. That Courts have continually cautioned that a raptured or absent hymen on its own is not definitive evidence that penetration occurred. This position is supported by the Court of Appeal's finding in Erick Onyango Ondeng' v Republic criminal appeal no. 5 of 2013 where the Court stated:
"We agree with the first appellate court that to establish defilement, it is not necessary that the hymen must be broken. Even partial penetration of the female genital by male genital will suffice to constitute the offence."
28. That in any case, the judgment of the trial court clearly shows that the conviction of the Appellant was not on the fact of a broken hymen but the totality of the evidence That PW1's evidence was corroborated by PW5's testimony who visited and photographed the scene. That the said photographs showed that the scene was disturbed. They submit that the totality of the evidence on record points to lack of consent.
29. Relying on s. 42 of the Sexual Offences Act on the issue of Consent, it is submitted that one of the central elements of rape is whether the Complainant consented to the penetration. The Court of Appeal in Republic vs Oyier [1985] KLR 353 stated as follows:
"the lack of consent is an essential element of the crime of rape. The mens rea in rape is primarily an intention and not a state of mind. The mental element is to have intercourse without consent or not caring whether the woman consented or not."
30. Further reliance is placed on Charles Ndirangu Kibue v Republic [2016J KEHC 4847 (KLR) .
A man is guilty of rape if he commits sexual intercourse with a woman either against her will or without her consent as enumerated under the Section 43 cited above. The sex must be against the will of the complainant. The word ‘will’ implies the faculty of reasoning power of mind that determines whether to do an act or not. The expression ‘against her will’ would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition...
The burden of proof lies upon the prosecution to prove that the sexual intercourse was without the consent or against the will of the woman. A woman is said to consent only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent may be either expressed or implied depending upon the nature and circumstances of the case. However, there is a difference between consent and submission. An act of helpless resignation in the face of inevitable compulsions is not consent in law.
31. On whether the appellant was identified as the perpetrator dentification, it is submitted that the Complainant knew the Appellant prior to the incident and positively identified him as the perpetrator. this happened in the day time. That this was a case of recognition rather than identification of a stranger.
32. On whether or not the appellant’s defence was considered it is submitted that the Appellant elected to give unsworn testimony. The prosecution relied on May v Republic [1979] eKLR where the court stated "With reference to Section 1(h) of the Criminal Evidence Act, 1898, which preserved the right of an accused person in England to make a statement without being sworn, Shaw U said:
The section makes a clear distinction between the position where an accused person elects to assume the role of a witness in his defence and the situation where he makes an unsworn statement. In the latter case, he is not a witness, and he does not give evidence what is said in such a statement is not to be altogether brushed aside; but its potential value is persuasive rather than evidential. It cannot prove facts not otherwise proved by the evidence before the jury, but it may make the jury see the proved facts and the inferences from them in a different light. In as much as it may thus influence the jury's decision, they should be invited to consider the content of the statement in relation to the whole of the evidence. It is perhaps unnecessary to tell the jury whether or not it is evidence in the strict sense. It is material in the case. It is right, however, that the jury should be told that a statement not sworn to and not tested by cross-examination has less cogency and weight than sworn evidence."
33. It is submitted that the Appellant's unsworn statement was incapable of being tested through cross examination for veracity and accordingly had low probative value. That in any event it was in the context of the rest of the evidence and it did not debunk the rest of the Prosecution's case.
34. On whether the case for the prosecution was riddled with inconsistences, it is submitted that the Court in Komba v Office of the Director of Public Prosecution (Criminal Appeal 21 of 2019) [2023] KEHC 1755 (KLR) stated as follows:
"In law, contradictions are said to affect conviction if they are grave leading to the conclusion that the offence never occurred and if at all it occurred, it was not committed by the accused person. This was the holding of the court of appeal in Jackson Mwanzia Musembi v Republic (2017) eKLR ."
35. It is submitted that the inconsistencies complained of by the Appellant were not sufficiently grave to be capable of upsetting the conviction. That the trial court rightfully found that the contradictions were inconsequential and did not go to the root of the case.
36. On whether the sentence was excessive, it is submitted that that Section 3(3) of the Sexual Offences Act provides as follows:
"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."
37. That the Supreme Court in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) stated that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code , Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution.
38. That it is settled law that sentencing is a matter that rests in the discretion of the trial court, That the appellant was charged with an offence that carries a mandatory minimum sentence of 10 years. That the import of the Supreme Court decision in Republic v Manyeso is that Court cannot substitute mandatory minimum sentences with alternative sentences. The sentence was lawful, and so was the conviction
39. It is their submission that Appellant's conviction and sentence be upheld.
ANALYSIS AND DETERMINATION
40. The duty first appellate court was set out in the case of Okeno vs. Republic [1972] E.A 32 as follows;
“It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses...”
41. Having considered the appeal, the record of appeal, the rival submissions by the parties, I find that the issues for determination are follows;
i. Whether the Appellant was positively identified.
ii. Whether penetration was proved.
iii. Whether the complainant consented to the act.
iv. Whether the sentence was excessive.
42. The prosecution ‘s case was that on 29.3.2025 at 3:00pm PW1 Gladys Cherogony Keitany was from hospital in Kabartonjo. She boarded a motor cycle to take her home . They followed a short cut. On the way, she had to alight and walk the remaining distance as she did not have enough fare. this is when she met the accused person Felix Chemjor going uphill. They bypassed each other and he greeted her.
43. The accused person then asked her to stop and said it was his day to be with her. He told her he wanted her body. He told her he would destroy her that day PW1 pleaded with him telling him that he was like her own child.. he told her ‘nitakutomba’.
44. The accused person violently pulled her into the forest. she was alone and helpless. He threatened to kill her if she raised alarm. He pulled her violently into the forest. He then made her fall and removed her pant. He undressed very fast and had penetrative sex with her. she could not tell how long he took . She was afraid. she kept quiet, she cried . When he was done he left her.
45. He then left her and she went back to the road. she said she did not wear her pant. She saw the accused person following her . In the process, her daughter called her asking why she had delayed and she narrated to her what had transpired. she told her to tell her son Alex to go and rescue her.
46. When Alex arrived accused was still there talking to her then he , he run away. Though she was feeling shame she told her children what had transpired. Alex then later went and arrested the accused person and took him to Kabartonjo Police Station. She went to the village elder then to hospital at Kabartonjo.
47. PW2 Valary Kigen Cherogony told the Court that on 29/3/25, her mother PW1 had gone for medication in Kabartonjo. By 3:40pm, she had not come back so she called her to find out what was wrong. she said when her mother did not pick the calls it was unusual. Then her mother called back. she was breathing heavily and told her that the accused whom the called ‘James’ at home had met her on the path in the short cut , dragged her into a bush . PW2 told her brother who went where their mother was . They came back home after about 35 minutes later. Her mother had one shoe in her hand, her clothes were muddy. she told them that the accused had raped her. (the witness was traumatized that during her testimony she broke down) That when accused was arrested and brought to their home by elders she asked him he would go for her mother yet, he could have asked her instead. That the accused claimed that their mother was his girlfriend.
48. The accused person was then taken to Kabartonjo Police Station and PW1 taken for treatment at Kabartonjo Sub County Hospital.
49. PW3 Alex Kibukwa Cherogony told the Court that when the sister told him about the incident he went to the scene. he said he saw Felix who was drunk. He ran away. He took his mother away . She was crying and her clothes were muddy.
50. PW3 further stated that he went to the accused's house later and arrested him. He was then taken to Kabartonjo Police Station.
51. PW4 Japheth Cheserek a clinical officer working at Kabartonjo Sub County Hospital told the Court that he examined PW1 on 30/3/25. He stated that PW1 was taken to their facility on 29/3/25 at 11pm in the company of two village elders with a history of rape on 29 th March 2025.. He stated that upon examination, he found that she had a smelling discharge from her vagina. Urinalysis that was done showed that PW1 had pus and epithelial cells.PW4 concluded that PW1 had been raped. He produced treatment notes dated 29/3/25, laboratory form, post rape care form and a P3 Form. He said no sperms were seen
52. PW5 No. 226801 Corporal George Okoth working at Kabartonjo Police Station told the Court that on 30/3/25, told the court that he was assigned the case to investigate. He visited the scene together with the complainant. He found evidence of a struggle. He photographed the scene. The . photographs were produced in evidence.
53. He also produced the mud stained clothes that were worn by the Complainant on that day.PW5 told the Court that there was no grudge or relationship between the two parties.
54. In his defence the accused person told the Court in his unsworn testimony that on 28/3/25, he was in a drinking den in the evening. He exhausted the money that he had and even drunk alcohol on a debt of kshs 450.He stated that he told the seller who is the complainant that he would pay her and left. However Alex went to demand the same at his home, PW3 asked him to get out and walk with him to his home. There, the debt was demanded from him which he didn't have. They told him they would take him to Kabartonjo Police Station.
55. He claimed that he was taken to the police station at 7:30pm
56. Having considered the evidence, the issue for determination is whether the appeal has merit.
57. On identification, it is clear from the evidence, and it is not disputed that the accused and the complainant were neighbourts, hence it was not a matter of identification but of knowing the person and recognising the person. This incident happened in the day time hence there is no doubt as to the identity of the person. The accused and the complainant spoke before and after the incident. The complainant identified her attacker as the appellant herein.
58. On the issue of identification, I find that the Appellant was positively identified by the complainant.
59. On the issue of penetration, the court did not rely on whether or not there was a hymen etc.
1. The complainant told the court that the accused raped her. The doctor found evidence of rape. I find that there is evidence of penetration. The complainant described in detail what happened and it is not mandatory that there must be evidence of the doctor. It evident from those authorities cited that the evidence of spermatozoa is not mandatory as well. see Erick Onyango Ondeng' v Republic criminal appeal no. 5 of 2013 where the Court stated:
"We agree with the first appellate court that to establish defilement, it is not necessary that the hymen must be broken. Even partial penetration of the female genital by male genital will suffice to constitute the offence."
2. The testimony of the complainant is sufficient where the court finds it credible. This was a 50 year old woman who had to tell her children that she had been raped. If the issue was just the debt of Ksh 450 it is not believable that the complainant would have gone to the length of creating a rape case. In any event her evidence was supported by that of her daughter whom she called immediately after the incident, the one who saw her mother arrive home carrying one shoe with muddy clothes, the one who had to wish that the accused could have dealt with her and not her mother.
3. Whether or not the prosecution called all the other persons the appellant spoke about, it is my view that the evidence on record was sufficient to establish that penetration had occurred.
4. Evidently the complainant did not consent to the sexual intercourse. She told the court that the appellant was the age of her children and she could only cry as it was in the forest, she was alone, and helpless. The appellate told her he wanted her body and that he would destroy her that day. She described the violence and the threats . There was no consent.
5. On whether the sentence of 10 years imprisonment was harsh and excessive, the appellant was given the minimum mandatory sentence provided by 3 (3) of the Sexual Offence Act prescribes the penalty for the offence, section 3 (3) of the Sexual Offences Act states as follows;
“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
6. The appellant was arrested on 30 th March 2025. He was convicted on 22/7/2025. He was sentenced on 5/8/2025.
7. I have taken into account the above in making the final orders.
8. In the end I find that the appeal is without merit . The Appeal is dismissed.
9. The conviction and sentence of the trial court in sustained.
Judgment dated , signed and delivered virtually at Kabarnet High Court on 17 th July 2026
Mumbua T Matheka
Judge
CA Momanyi/GLADYS
Appellant Present
For Prosecution Koech
JUDGMENT HCCRA E001 of 2026 Page 2 of 2
IN THE HIGH COURT OF KENYA AT KABARNET
H.C.C.R. APPEAL No. E001 OF 2026
FELIX CHEMJOR KANGOGO………………..……………APPELLANT
=VERSUS=
REPUBLIC………………………………………………RESPONDENT
(Being an appeal against the conviction and sentence of 10 years on an offence of Rape contrary to section 3(1)(a)(b)(c)as read with section 3(3) of the Sexual Offences Act No.3 of 2006)
JUDGMENT
1. FELIX CHEMJOR KANGOGO was charged with Rape contrary to section 3(1),(a),(b),(c) as read with section 3(3) of the Sexual Offences Act No.3 of 2006. The particulars of the charge were that on the 29 th day of March,2025 at 1500hours at Chelenge Forest in Kaimugul Village, Ossen Location in Baringo North he caused his penis to penetrate the vagina of Gladys Cheragony an adult aged 50 years without her consent.
2. in the alternative the Appellant is charged with committing an indecent act with an adult contrary to section 11(a) of the Sexual offences Act No.3 of 2006. Particulars being that on the 29 th day of March,2025 at 1500 hours at Chelenge Forest in Kaimugul village, Ossen Location in Baringo North Sub-county within Baringo County, intentionally and unlawfully touched the vagina of Gladys Cheragony an adult aged 50 years.
3. He pleaded not guilty to all the charges .
4. The prosecution called five (5) witnesses and closed its case.
5. The appellant was placed on his defence and gave sworn testimony and did not call any witness.
6. In a judgment dated and delivered on 22 nd July,2025, the trial court found that the prosecution had proved the charge against the accused person beyond reasonable doubt. He was convicted and sentenced to 10 years imprisonment.
7. Aggrieved by the conviction and sentence the appellant lodged this appeal on the following grounds
i. That, the learned trial magistrate erred in law and facts by failing to note that the proof of the case beyond reasonable doubt did not meet the threshold to warrant any safe conviction.
ii. That the learned trial magistrate erred in law and fact by failing to point out the rebutted or rather displaced by the prosecution pursuant to the provisions of Section 309 of the criminal procedure Code.
iii. That, the learned trial magistrate erred in law and fact by failing to appreciate that the critical witnesses were not called and consequently failed to invoke the provisions of Section 150 of the criminal procedure code.
iv. That the learned trial magistrate erred in law and facts by imposing not only a harsh but excessive sentence based on the circumstances.
8. The Appellant sought that the appeal allowed the conviction quashed, the sentence set aside and he be set at liberty.
9. The appeal was canvassed by way of written submissions.
Appellant’s Submissions
10. The Appellant submits that the burden of proof in criminal cases never leaves the prosecution’s backyard. He relies on Woolmington Vs. DPP , R vs Kipkering Arap Koskei & Another [1949]16 EACA 135 and Republic vs Stephen Kiprotich Leting & 3 others Criminal Case No. 34 of 2008 [2009]eKLR .
11. The appellant challenges the doctor’s evidence on the ground that the complainant was an adult woman with grown children so the issue of a broken hymen could not arise. He argues that the evidence from the vaginal swabs collected from the complainant and the laboratory tests reports were not produced before the trial court to ascertain its findings. He submits that this was fatal to the case for the prosecution.
12. In addition, that the complainant reported that she had changed clothes and urinated before going to hospital destroying evidence. That this meant that there was no proof she was raped.
13. That there was contradiction on the color of the clothes the That PW 1 wore : that she said it was a yellow top but what was produced in court by PW 5 was a mud stained orange top..
14. It was his defence that the issue was a grudge over a debt of Ksh 450 over alcohol that he owed the complainant.
15. That he made a plausible defence which created and cast considerable doubt on the prosecution’s case and he should have been acquitted
16. Citing the provisions of section 143 of the Evidence Act which allows the Prosecution to decide the number of witnesses to , he argues that that does not relieve the prosecution of its duty of calling witnesses to support their case. That failure to call vital witnesses gives the court the leeway to presume that the evidence which has been withheld was unfavorable to the prosecution’s case. That this was enunciated in Bukenya & Another Vs Uganda[1972] E.A 549 and further in Juma Ngondia Vs. Republic (1982-88) KAR 450
17. The appellant contends that the prosecution failed to call the crucial prosecution witnesses who included the complainant’s daughter, complainant’s other children, village elder (Kiptoo), the rider and Police constable Fredrick Ayodo. That in the upshot, the prosecutions case was left with glaring gaps which the trial court did not attempt to reconcile to the prejudice of the Appellant.
18. It is the Appellant’s position that the trial magistrate erred by failing to invoke the provisions of section 150 of the Criminal Procedure Code to summon the five key witnesses and other critical witnesses despite their evidence being material in this case to the prejudice of the Appellant.
19. On the issue of sentence , the appellant submits that according to the Kenya Judiciary Sentencing Policy Guidelines 2016 and 2023, the sentence imposed must meet the following objectives in totality:-
1. Retribution.
2. Deterrence
3. Rehabilitation
4. Restorative justice.
20. He argues that that any sentence imposed ought to satisfy these parameters, and the court should take into consideration the spirit of the Constitution to move away from retributive justice to restorative justice. He submits that the sentence imposed by the trial court was excessive in the circumstances and has caused him a lot of trauma.
Prosecution’s Submissions
21. The Prosecution is opposed to the appeal and urges the court to uphold both the conviction and sentence. The prosecution has set the following issues for determination's:
a. Whether the Prosecution discharged its burden of proof to the required standard; and
b. Whether the sentence is excessive in the circumstances.
22. Citing Okeno v Republic [1972] EA 32 the Prosecution reminds the court that this being a first appeal, this Court is duty bound to reevaluate the entire evidence on record, subject it to a fresh and exhaustive analysis, and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify.
23. On whether the prosecution discharged its burden of proof to the required standard it is submitted that Section 3(1) of the Sexual Offences Act provides that a person commits an offence termed rape if: the person intentionally and unlawfully commits an act which causes penetration with their genital organs; the other person does not consent to the penetration; or the consent is obtained by force or by means of threats or intimidation of any kind. That the ingredients of rape are
5. Penetration;
6. Lack of consent; and
7. Identification .
24. On Penetration, the prosecution cites Section 2 of the Sexual Offences Act definition of penetration. That further, the Court of Appeal in Mark Oiruri Mose v Republic [2013] KECA 67 (KLR) while discussing what constitutes penetration.
In any event the offence is against penetration of a minor and penetration does not necessarily end in release of sperms into the victim. Many times the attacker does not fully complete 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.
25. That in the present case, PW1 stated that the Appellant told her that he wanted her body. That he then pushed her to into the forest and threatened to kill her if she dared to scream, that he removed her pants and had sex with her.
26. That PW1's testimony was corroborated by PW4 a qualified Clinical Officer from Kabartonjo Sub-county Referral Hospital who stated that examination revealed that PW1 had a discharge with a smell from her vagina . That Laboratory results showed that she had pus and epithelial cells, these findings were captured in the P3 form and treatment notes where the doctor concluded that PW1 was raped.
27. It is submitted that the Appellant in his defence stated there was nothing to show that he broke PW1's hymen in that that to establish the charge of rape, it is not necessary that the hymen must be broken. That Courts have continually cautioned that a raptured or absent hymen on its own is not definitive evidence that penetration occurred. This position is supported by the Court of Appeal's finding in Erick Onyango Ondeng' v Republic criminal appeal no. 5 of 2013 where the Court stated:
"We agree with the first appellate court that to establish defilement, it is not necessary that the hymen must be broken. Even partial penetration of the female genital by male genital will suffice to constitute the offence."
28. That in any case, the judgment of the trial court clearly shows that the conviction of the Appellant was not on the fact of a broken hymen but the totality of the evidence That PW1's evidence was corroborated by PW5's testimony who visited and photographed the scene. That the said photographs showed that the scene was disturbed. They submit that the totality of the evidence on record points to lack of consent.
29. Relying on s. 42 of the Sexual Offences Act on the issue of Consent, it is submitted that one of the central elements of rape is whether the Complainant consented to the penetration. The Court of Appeal in Republic vs Oyier [1985] KLR 353 stated as follows:
"the lack of consent is an essential element of the crime of rape. The mens rea in rape is primarily an intention and not a state of mind. The mental element is to have intercourse without consent or not caring whether the woman consented or not."
30. Further reliance is placed on Charles Ndirangu Kibue v Republic [2016J KEHC 4847 (KLR) .
A man is guilty of rape if he commits sexual intercourse with a woman either against her will or without her consent as enumerated under the Section 43 cited above. The sex must be against the will of the complainant. The word ‘will’ implies the faculty of reasoning power of mind that determines whether to do an act or not. The expression ‘against her will’ would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition...
The burden of proof lies upon the prosecution to prove that the sexual intercourse was without the consent or against the will of the woman. A woman is said to consent only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent may be either expressed or implied depending upon the nature and circumstances of the case. However, there is a difference between consent and submission. An act of helpless resignation in the face of inevitable compulsions is not consent in law.
31. On whether the appellant was identified as the perpetrator dentification, it is submitted that the Complainant knew the Appellant prior to the incident and positively identified him as the perpetrator. this happened in the day time. That this was a case of recognition rather than identification of a stranger.
32. On whether or not the appellant’s defence was considered it is submitted that the Appellant elected to give unsworn testimony. The prosecution relied on May v Republic [1979] eKLR where the court stated "With reference to Section 1(h) of the Criminal Evidence Act, 1898, which preserved the right of an accused person in England to make a statement without being sworn, Shaw U said:
The section makes a clear distinction between the position where an accused person elects to assume the role of a witness in his defence and the situation where he makes an unsworn statement. In the latter case, he is not a witness, and he does not give evidence what is said in such a statement is not to be altogether brushed aside; but its potential value is persuasive rather than evidential. It cannot prove facts not otherwise proved by the evidence before the jury, but it may make the jury see the proved facts and the inferences from them in a different light. In as much as it may thus influence the jury's decision, they should be invited to consider the content of the statement in relation to the whole of the evidence. It is perhaps unnecessary to tell the jury whether or not it is evidence in the strict sense. It is material in the case. It is right, however, that the jury should be told that a statement not sworn to and not tested by cross-examination has less cogency and weight than sworn evidence."
33. It is submitted that the Appellant's unsworn statement was incapable of being tested through cross examination for veracity and accordingly had low probative value. That in any event it was in the context of the rest of the evidence and it did not debunk the rest of the Prosecution's case.
34. On whether the case for the prosecution was riddled with inconsistences, it is submitted that the Court in Komba v Office of the Director of Public Prosecution (Criminal Appeal 21 of 2019) [2023] KEHC 1755 (KLR) stated as follows:
"In law, contradictions are said to affect conviction if they are grave leading to the conclusion that the offence never occurred and if at all it occurred, it was not committed by the accused person. This was the holding of the court of appeal in Jackson Mwanzia Musembi v Republic (2017) eKLR ."
35. It is submitted that the inconsistencies complained of by the Appellant were not sufficiently grave to be capable of upsetting the conviction. That the trial court rightfully found that the contradictions were inconsequential and did not go to the root of the case.
36. On whether the sentence was excessive, it is submitted that that Section 3(3) of the Sexual Offences Act provides as follows:
"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."
37. That the Supreme Court in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) stated that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code , Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution.
38. That it is settled law that sentencing is a matter that rests in the discretion of the trial court, That the appellant was charged with an offence that carries a mandatory minimum sentence of 10 years. That the import of the Supreme Court decision in Republic v Manyeso is that Court cannot substitute mandatory minimum sentences with alternative sentences. The sentence was lawful, and so was the conviction
39. It is their submission that Appellant's conviction and sentence be upheld.
ANALYSIS AND DETERMINATION
40. The duty first appellate court was set out in the case of Okeno vs. Republic [1972] E.A 32 as follows;
“It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses...”
41. Having considered the appeal, the record of appeal, the rival submissions by the parties, I find that the issues for determination are follows;
i. Whether the Appellant was positively identified.
ii. Whether penetration was proved.
iii. Whether the complainant consented to the act.
iv. Whether the sentence was excessive.
42. The prosecution ‘s case was that on 29.3.2025 at 3:00pm PW1 Gladys Cherogony Keitany was from hospital in Kabartonjo. She boarded a motor cycle to take her home . They followed a short cut. On the way, she had to alight and walk the remaining distance as she did not have enough fare. this is when she met the accused person Felix Chemjor going uphill. They bypassed each other and he greeted her.
43. The accused person then asked her to stop and said it was his day to be with her. He told her he wanted her body. He told her he would destroy her that day PW1 pleaded with him telling him that he was like her own child.. he told her ‘nitakutomba’.
44. The accused person violently pulled her into the forest. she was alone and helpless. He threatened to kill her if she raised alarm. He pulled her violently into the forest. He then made her fall and removed her pant. He undressed very fast and had penetrative sex with her. she could not tell how long he took . She was afraid. she kept quiet, she cried . When he was done he left her.
45. He then left her and she went back to the road. she said she did not wear her pant. She saw the accused person following her . In the process, her daughter called her asking why she had delayed and she narrated to her what had transpired. she told her to tell her son Alex to go and rescue her.
46. When Alex arrived accused was still there talking to her then he , he run away. Though she was feeling shame she told her children what had transpired. Alex then later went and arrested the accused person and took him to Kabartonjo Police Station. She went to the village elder then to hospital at Kabartonjo.
47. PW2 Valary Kigen Cherogony told the Court that on 29/3/25, her mother PW1 had gone for medication in Kabartonjo. By 3:40pm, she had not come back so she called her to find out what was wrong. she said when her mother did not pick the calls it was unusual. Then her mother called back. she was breathing heavily and told her that the accused whom the called ‘James’ at home had met her on the path in the short cut , dragged her into a bush . PW2 told her brother who went where their mother was . They came back home after about 35 minutes later. Her mother had one shoe in her hand, her clothes were muddy. she told them that the accused had raped her. (the witness was traumatized that during her testimony she broke down) That when accused was arrested and brought to their home by elders she asked him he would go for her mother yet, he could have asked her instead. That the accused claimed that their mother was his girlfriend.
48. The accused person was then taken to Kabartonjo Police Station and PW1 taken for treatment at Kabartonjo Sub County Hospital.
49. PW3 Alex Kibukwa Cherogony told the Court that when the sister told him about the incident he went to the scene. he said he saw Felix who was drunk. He ran away. He took his mother away . She was crying and her clothes were muddy.
50. PW3 further stated that he went to the accused's house later and arrested him. He was then taken to Kabartonjo Police Station.
51. PW4 Japheth Cheserek a clinical officer working at Kabartonjo Sub County Hospital told the Court that he examined PW1 on 30/3/25. He stated that PW1 was taken to their facility on 29/3/25 at 11pm in the company of two village elders with a history of rape on 29 th March 2025.. He stated that upon examination, he found that she had a smelling discharge from her vagina. Urinalysis that was done showed that PW1 had pus and epithelial cells.PW4 concluded that PW1 had been raped. He produced treatment notes dated 29/3/25, laboratory form, post rape care form and a P3 Form. He said no sperms were seen
52. PW5 No. 226801 Corporal George Okoth working at Kabartonjo Police Station told the Court that on 30/3/25, told the court that he was assigned the case to investigate. He visited the scene together with the complainant. He found evidence of a struggle. He photographed the scene. The . photographs were produced in evidence.
53. He also produced the mud stained clothes that were worn by the Complainant on that day.PW5 told the Court that there was no grudge or relationship between the two parties.
54. In his defence the accused person told the Court in his unsworn testimony that on 28/3/25, he was in a drinking den in the evening. He exhausted the money that he had and even drunk alcohol on a debt of kshs 450.He stated that he told the seller who is the complainant that he would pay her and left. However Alex went to demand the same at his home, PW3 asked him to get out and walk with him to his home. There, the debt was demanded from him which he didn't have. They told him they would take him to Kabartonjo Police Station.
55. He claimed that he was taken to the police station at 7:30pm
56. Having considered the evidence, the issue for determination is whether the appeal has merit.
57. On identification, it is clear from the evidence, and it is not disputed that the accused and the complainant were neighbourts, hence it was not a matter of identification but of knowing the person and recognising the person. This incident happened in the day time hence there is no doubt as to the identity of the person. The accused and the complainant spoke before and after the incident. The complainant identified her attacker as the appellant herein.
58. On the issue of identification, I find that the Appellant was positively identified by the complainant.
59. On the issue of penetration, the court did not rely on whether or not there was a hymen etc.
1. The complainant told the court that the accused raped her. The doctor found evidence of rape. I find that there is evidence of penetration. The complainant described in detail what happened and it is not mandatory that there must be evidence of the doctor. It evident from those authorities cited that the evidence of spermatozoa is not mandatory as well. see Erick Onyango Ondeng' v Republic criminal appeal no. 5 of 2013 where the Court stated:
"We agree with the first appellate court that to establish defilement, it is not necessary that the hymen must be broken. Even partial penetration of the female genital by male genital will suffice to constitute the offence."
2. The testimony of the complainant is sufficient where the court finds it credible. This was a 50 year old woman who had to tell her children that she had been raped. If the issue was just the debt of Ksh 450 it is not believable that the complainant would have gone to the length of creating a rape case. In any event her evidence was supported by that of her daughter whom she called immediately after the incident, the one who saw her mother arrive home carrying one shoe with muddy clothes, the one who had to wish that the accused could have dealt with her and not her mother.
3. Whether or not the prosecution called all the other persons the appellant spoke about, it is my view that the evidence on record was sufficient to establish that penetration had occurred.
4. Evidently the complainant did not consent to the sexual intercourse. She told the court that the appellant was the age of her children and she could only cry as it was in the forest, she was alone, and helpless. The appellate told her he wanted her body and that he would destroy her that day. She described the violence and the threats . There was no consent.
5. On whether the sentence of 10 years imprisonment was harsh and excessive, the appellant was given the minimum mandatory sentence provided by 3 (3) of the Sexual Offence Act prescribes the penalty for the offence, section 3 (3) of the Sexual Offences Act states as follows;
“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
6. The appellant was arrested on 30 th March 2025. He was convicted on 22/7/2025. He was sentenced on 5/8/2025.
7. I have taken into account the above in making the final orders.
8. In the end I find that the appeal is without merit . The Appeal is dismissed.
9. The conviction and sentence of the trial court in sustained.
Judgment dated , signed and delivered virtually at Kabarnet High Court on 17 th July 2026
Mumbua T Matheka
Judge
CA Momanyi/GLADYS
Appellant Present
For Prosecution Koech
JUDGMENT HCCRA E001 of 2026 Page 2 of 2