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JudgmentFRANCIS NJUKI WANJIKU VS The Republic9 min read

FRANCIS NJUKI WANJIKU VS The Republic

High Court at Embu High Court · · Lucy Njuguna


(An Appeal from the decision of Hon. R.M Mundia P.M in Embu MCSO No. E027 of 2023 Delivered on 21st February, 2024)


  1. The appellant herein was charged with the offence of Rape contrary to section 3 (1) as read with 3(3) of the Sexual Offences Act number 3 of 2006.  The particulars were that on the 15th day of April, 2022 at Kangaru Location in Embu West Sub County within Embu County, intentionally and unlawfully caused his penis to penetrate the vagina of B.E.W without her consent.  The appellant also faced an alternative charge of committing an indecent Act with an Adult contrary to Section 11(A) of the Sexual Offences Act No.3 of 2006.  The particulars were that on the 15th day of April, 2022 at Kangaru location in Embu West Sub- County within Embu County he intentionally touched the vagina of B.E.W with his hands against her will.
  2. The case proceeded for full trial.  The complainant stated that on the 15/4/2022, she was praying in her mother’s house, one Esther Wangechi in the sitting room at Kangaru when she heard a loud bhang on the door which was rarely used.  The door went afar and she thought it was her brother, Erick but he was not the one.  The individual approached her and told her that he wanted money and he was armed with a panga and a rake, she got scared.
  3. That he told her that he wanted money and he took her phone.  She told him she did not have anything on herself and she offered to send money via phone.  He pushed her towards the seat and ordered her to undress and she resisted.  He told her if she did not co-operate he would stab her with a knife.  He slapped her and she fell down.  He removed his trouser and hers and inserted his penis in her vagina without using any protection.  That after he finished, he told her he was not contented with leaving empty handed and told her that he is the one who had conducted a house break in their house and had stolen TV and two phones.
  4. He further told her that his main agenda was not to steal but he had been lured to kill her mother.  He asked for her number so that she could send him Ksh. ten thousand shillings after three days which she gave him because he was threatening her.  That after the man had left, she went to her neighbor one David who went to the police post adjacent their home and a police officer namely Kefa went to their home immediately.  Her statement was recorded the following morning and she was treated at Embu General Hospital.  That she gave the police the description of the person who raped her with a chocolate complexion, middle aged and medium height.  She also told the police that she could identify the person.
  5. She stated that the person called her after three days asking for money which she did not have, and the man told her to send via a mobile number which she sent and she kept the police abreast.  That she later identified the perpetrator in an identification parade which was conducted at Embu police station.  He identified the appellant as the person who raped her.
  6. On cross-examination she stated that prior to the incident she had never seen the appellant.  She stated that she did not scream because the appellant was armed with a panga and she was scared for her life and that of her children who were also in the house at the material time.  That the incident happened a year before the appellant was arrested and charged and that she sent Ksh.5,200 to a till number and that the appellant could call her using different numbers.
  7. PW2, was P. C Kefa Kariuki who stated that on the 15/4/2022 he was at the station when one student by name David Kinyua of Embu University was sent to the station by PW1 to report that she had been raped and that she wanted to record the complaint.  That they entered the complaint in the O. B with Pc Rose and proceeded to the scene as directed by David Kinyua.  That PW1 told them she was praying when the appellant accosted her and they advised her to go to the station the following day so that they could record her statement.  They later arrested the appellant after he was identified in an identification parade.
  8. PW3 was Dennis Mwenda, a forensic physician at Embu level 5 Hospital.  He stated that he examined PW1 on the 19/5/2022 after an alleged case of rape.  On examination he established that her hymen had been perforated and healed and there were no fresh injuries.  She had had three deliveries before with the last one being on the 22/10/2021. That he examined her one month after the incident.  She had treatment notes from Nembure Health centre dated the 15/4/2022 and he confirmed that there was sexual assault as the results indicated that she had epithelial cells (friction).  That there was isolated pus cells and epithelia cells confirming friction.
  9. PW4 was I.P Mary Gakii who stated that she conducted identification parade at Embu police station on the 26/7/2023.  That the parade had eight participants who were all of the same height, weight and complexion.  That PW1 identified the appellant by touching him and he was standing between 3 – 5.  The appellant stated that he was satisfied with the parade and she signed the parade forms.  On cross-examination she stated that she did not know her before the incident.
  10. PW5 was PC Gladys Kiwasi who was the investigating officer.  She stated that on the 26/6/2023 she was handed over a police file which was pending investigations from Sgt. Omari Soka involving a complaint that had been made by PW1 of an alleged incident of rape which took place on the 15/4/2022.  His evidence was similar to that of PW1 and it does not serve any purpose for the court to rehash it here.  That while investigations were progressing, she received a call on the 29/7/2023 from the officer in charge of Kangaru police post and informed him that the appellant had been arrested and taken to Embu police station.  That the appellant was identified in an identification parade as PW1’s perpetrator.  On cross examination he stated that he did not visit the scene as he was not the initial investigator and that the weapons were not recovered.
  11. In his unsworn evidence, the appellant stated that on the 27/5/2023 his employer asked him to accompany him to the police station as he had lost money so that they could record an agreement.  That he spent the night in the cells and in the morning, he found a woman seated and he passed her as he was being escorted to the crime office where he found six other people standing in a line.  That the lady went and placed her hand on his shoulder, his finger prints were taken and he was charged with the offence of rape.
  12. The appellant was sentenced to 15 years imprisonment and being dissatisfied with the sentence and conviction, filed the petition of appeal dated the 14th September, 2024 in which he has listed the following grounds of appeal;
    1. The learned magistrate erred in law and fact by failing to put into consideration irregularities and illegalities in the prosecution’s case.
    2. The learned magistrate erred in failing to analyze the entire prosecution’s case and in holding that the case was proved beyond reasonable doubt.
    3. The learned magistrate erred in law and in fact by rejecting the appellants defence that was true and believable.
    4. The learned magistrate erred in law and in fact by showing open bias which led to a miscarriage of justice.

13.  The appellant prayed that the appeal be allowed, the conviction be quashed and the sentence be set aside and he be set at liberty.

15.  The appellant was charged with the offence of rape.  The ingredients of the offence are;

  1. Whether the appellant was properly identified
  2. Whether penetration was proved.
  3. Whether the complainant consented to the act.

16.  On whether the appellant was properly identified, it was the evidence of PW1 that she was in the house praying when she heard a loud bhang on a door which was rarely used.  The lights inside the house were on.  The appellant approached her and he told her that he wanted money and he was armed with a panga and a rake.  That he pushed her towards the rear and raped her and after he was done with her, he started talking to her and told her that he wanted money from her and that he was not going to leave empty handed.  He asked her for her number and asked her to send him Ksh.10,000.  She was able to identify the appellant in an identification parade which was done at Embu police station on the 26/7/2023.  When PW1 reported the incident, he gave the description of the perpetrator and told the police that she could identify her assailant as chocolate complexion, middle aged and of medium height.  After the identification parade, the appellant signed the parade forms and he did not complain. From the evidence, it is clear that the appellant was properly identified by PW1, as the perpetrator.

17.  On whether the penetration was proved, section 2 of the Sexual Offences Act defines (penetration as the partial or complete insertion of the genital organs of a person into the genital organs of another person”.  In her evidence, PW1 gave a detailed account of how she was raped by the appellant on the material day.  PW 3 examined PW1 who had been treated at Nembure Health Centre.  The test indicated that there was epithelial cells (friction) and by the results, he confirmed that there had been sexual assault.  In addition, he filled the P3 and PRC forms which he produced as evidence.  From the evidence the trial court rightly found that penetration was proved.

18. On whether there was consent; according to section 42 of the sexual offences Act, a person is said to consent if they do so voluntarily and have the freedom and capacity to do so. In the case of R Vs Oyier (198) eKLR, the court of appeal articulated what amounts to consent and stated;

“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.

To prove the mental elements required in rape, the prosecution had to prove that the complainant physically resisted or if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist”.

19. In her evidence, PW1 stated that the appellant threatened to stab her if she did not co-operate.  The P3 form that was produced captured injuries on her private part and the doctor assessed the degree of injury as harm.

20.  In the case of Charles Ndirangu Vs Republic (2016) eKLR the court discussed the issue of consent and stated that it may be expressed or implied depending upon the nature and the circumstances of the case.  Any skepticism regarding consent is dispelled by the facts of the case, the type of injuries the complainant suffered, the fact that the complainant immediately reported the incident to the police and then promptly sought treatment.  All of those elements make it abundantly evident that there was no consent.

21.  The appellant had decried that his defence was not considered.  I have perused the record and note that the appellant’s defence was a mere denial which did not challenge the water tight case put forth by the prosecution.  He was properly identified by the complainant as the perpetrator both in the house and in the identification parade.  He signed the parade forms and he did not challenge the procedure of conducting the identification parade in any way.  I find that the defence does not hold any water.

22.On the sentence, section 3(3) of the Sexual Offences Act stipulates a sentence of imprisonment for a term of not less than 10 years which may be enhanced to imprisonment for life.  The appellant was given the least sentence under the law.  For the appellate court to overturn the sentence, it must be shown that the trial court made an error in law, considered irrelevant factors or that the sentence was excessive and disproportionate.  The appellant did not demonstrate any error on the part of the learned magistrate.

23.  In the end, I find that the appeal has no merits and the same is hereby dismissed.

24.  It is so ordered.

Delivered, dated and signed at Embu this 4th day of December, 2024.


    FRANCIS NJUKI WANJIKU VS The Republic FRANCIS NJUKI WANJIKU VS The Republic