1. The appellant Gideon Mukeku was convicted and sentenced to serve ten years imprisonment by the trial court on the principal charge of rape contrary to Section 3(1)(b) as read with subsection 3 of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SoA). Particulars of the charge were that on 3/10/2023 at an unknown time at an unknown place between K. village within Kwale County and Mwembe Tayari in Mombasa County, he intentionally and unlawfully caused his penis to penetrate the vagina of A.M.M. without her consent.
2. In the alternative, he was charged with committing an indecent act with an adult contrary to section 11(A) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same particulars as the principal charge, he intentionally and unlawfully touched the vagina of the said complainant without her consent.
3. He was dissatisfied with his conviction and sentence. He consequently lodged an appeal to the High Court vide a petition of appeal dated 12/11/2024. The grounds of appeal in the petition have set out the matters of law and fact in which the trial court is alleged to have erred. They are that:
a. there was no corroboration of the complainant’s evidence which was full of inconsistencies and doubts and the trial court failed to indicate why it felt safe in the absence of corroboration;
b. the complainant’s missing hymen as per the medical evidence adduced had no connection with the appellant; further the injuries indicated in the P3 form could not be attributed to an alleged struggle between the complainant and the appellant as the report was done four days after the alleged incident.
c. the trial magistrate failed to consider the actions or omissions of the complainant to support her evidence that is:
i. intentionally failing to raise an alarm in the hotel room.
ii. Failure to report the incident to any police station in spite of having adequate time to do so.
iii. Failure to inform the mother about the incident yet they were in contact.
iv. Proceeding with her journey to Bomet in spite of her allegation of the incident having occurred and if it did, the same must have been consensual.
d. Crucial witnesses namely room attendants, the brother of the complainant who according to her evidence was the first person to be informed about the incident.
e. Crucial evidence being excerpts of text messages allegedly sent by the complainant the brother was not produced.
f. There was no investigation of the matter by way of visiting the hotel and/or room where the alleged offence occurred and making available evidence such as receipts for booking at the hotel, CCTV footage, visitors’ record.
g. The trial court relied on circumstantial evidence and the ingredients of the offence were not proved beyond a reasonable doubt.
h. The trial court did not properly analyze and evaluate the appellant’s evidence and submissions.
i. The conviction and sentence were harsh and against the weight of the evidence presented.
4. This being a first appeal, the duty of this court is as was held in the case of Okeno vs. Republic [1972] EA 32 and several other decisions that this court is required to re-examine the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of hearing the witnesses give evidence and observing their demeanor and give allowance for that. This position is reiterated by the Court of Appeal in the case of Gabriel Kamau Njoroge v Republic [1987] KECA 4 (KLR) cited by learned counsel for the appellant.
5. I have re-examined, reanalyzed and re-evaluated the evidence tendered before the trial court with the above principles in mind.
6. The prosecution case was presented by four witnesses PW 1, A.M.M, the complainant; PW 2, M.K., the complainant’s mother; PW 3, PC Julius Anyumba, the investigating officer and PW 4, Beatrice Gitau, a clinical officer based at Msambweni hospital who produced a P3 form in respect of the complainant which was completed by a medical officer who was not available to testify on the material day because she was on duty.
7. The defence case was presented by the appellant and he did not call a witness. He denied that he committed the offence or had sexual intercourse with the complainant at all.
8. The facts not in contention are that the complainant and the appellant were well known to each other. They were both teachers at C. primary school, the complainant having joined the school on PTA terms after her KCSE examinations while the appellant was an old teacher there. On the material day the complainant was travelling to B. County in the Rift Valley region to attend B. university. The appellant picked the complainant from her home in C. village, Kwale County where she was with her mother PW 2 at around 9.00 a.m. or thereabouts and escorted her to Mombasa town where they booked a bus for her to travel to B. County. He also saw her off.
9. It is the complainant’s evidence that after booking the bus at around midday, as it was to leave at around 4.00 p.m. the appellant then urged her to get a place to rest. They looked for a place. After a distance of about 15 minutes’ walk from the bus they had booked, they came to a hotel where the appellant booked a room to rest as they waited for the time to board the bus. The complainant said that there were patrons in the hotel lounge having meals. They went together into the hotel room on the ground floor. The complainant observed that the room had a plastic chair and a bed.
10. The appellant left her in the room for a short while and went outside. He came back and found her seated on the bed. He did not say anything to her. He locked the door but not with a padlock then approached her from the front, grabbed her waist by force and undressed her beginning with her dress, then hijab, then biker and then pulled her panties to the knees and the menstrual pad she had on fell on the floor as she was in her menses. All along, the complainant was struggling with the appellant whereupon the appellant forcefully engaged in sexual intercourse with her without her consent.
11. She travelled to B. County that evening. According to the complainant, she sent a text message to her brother that the appellant had raped her. Her brother informed her mother, PW 2 who made a report to the police station the following day 4/10/2023. She travelled back on 8/10/2023 and went to Msambweni hospital and received medical attention. She recorded her statement with the police whereupon the appellant was arrested and charged.
12. The appellant said in his evidence in defence that he indeed took the complainant to the room for her to rest but denied that he engaged in any sexual intercourse with her. He said that as he was returning to the room, he overheard the complainant talking to her mother on phone but that she never told her that he had raped or attempted to rape her. He said that however, from the complainant’s physical appearance he could tell that she was not in a good mood with her mother who wanted to know why she was in a room. According to him, the complainant’s mother became livid on learning that the complainant had been in a room and he said this could be confirmed from his communication with her later on while she was at college which showed that the complainant’s mother was angry and bitter and demanded her to give a reason why she had found herself in a room. But the complainant never told her mother about the alleged rape incident.
13. Learned counsels for the appellant and the respondent filed submissions urging their respective positions on the matter.
14. The appellant’s counsel submits that the prosecution did not prove a case of rape against the appellant beyond a reasonable doubt. Learned counsel submitted on the grounds set out in the petition of appeal.
15. The first issue was lack of corroboration of the complainant’s evidence. Learned counsel submits that the evidence of rape being from a single witness, the complainant, the trial court believed her but it was full of half-baked truths and contradictions and so it relied upon the same to wrongfully convict the appellant disregarding the appellant’s evidence. Learned counsel takes issue with the fact that no witness such as a worker at the hotel was called to support the complainant’s evidence. It is also her submission that the medical report produced in the case did not support the complainant’s evidence of forceful penile penetration.
16. Learned counsel supports the submission on lack of corroboration with the decision in the case of John Mutua Munyoki v Republic [2017] KECA 376 (KLR) where the Court of Appeal held that:
“In cases where the court has to prefer the evidence of one person against the other, for instance between the accused and the complainant and that is the only evidence, the court must approach such evidence with a degree of circumspection, particularly in sexual offences that are normally committed in secrecy with hardly any eye witness. Contradictions and inconsistencies therefore matter in deciding who to believe.”
17. The second ground submitted upon was that the prosecution failed to call crucial witnesses namely the complainant’s brother who was the first person she allegedly reported the incident of rape to who later informed their mother, PW 2. The prosecution also failed to call any person from the hotel where the alleged incident occurred. Learned counsel cited among other cases, the case of Said Awadhi Mubarak v Republic [2014] KEHC 7276 (KLR) to buttress the submission that the failure to call a crucial witness was fatal to the prosecution case. In that case, the High Court cited the case of Bukenya -vs- Uganda [1972] EA 549, where the Court of Appeal held that a failure to call crucial witnesses by the prosecution entitles the court to make an adverse conclusion against the prosecution case, and acquit the accused person. Learned counsel therefore urged this court to follow these decisions and find in favour of the appellant that the failure to call these witnesses means that if called, their evidence would be unfavourable to the prosecution’s case.
18. Learned counsel also submitted on circumstantial evidence and the threshold of proof citing the celebrated case of R v. Kipkering Arap Koske , (1949) 16 EACA 135. However, considering the evidence on record, I find that little turns on the issue of proof of the case on circumstantial evidence. The main evidence here was direct evidence from the complainant rather than circumstantial.
19. On the issue of consent, learned counsel for the appellant submits that there was lack of corroboration of the complainant’s evidence from the medical evidence which showed that she had no bruises or lacerations on her body to indicate the use of force or struggle between her and the appellant. Learned counsel submits that the complainant never screamed for help, never left the room even when the appellant left her there, she herself went outside to the bathroom, cleaned herself and went back to the appellant who allegedly had sexually assaulted her and that all the circumstances surrounding her being with the appellant on that day speak volumes on her credibility as a witness.
20. Learned counsel also submitted that the trial court failed to consider the inconsistencies and contradiction’s in the complainant’s evidence. She cited several authorities on how the court should proceed to evaluate inconsistencies and contradictions in a case. However, learned counsel has not pointed out the particular instances of contradictions and inconsistencies in the prosecution’s case only stating that the trial court failed to consider them with the seriousness that they deserve. Again, I do not find that there is much that turns on the issue of inconsistencies and contradictions. If there were, they were minor and unworthy of having much effect in terms of creating a doubt on the evidence tendered. The only issue the learned counsel has pointed out is that it was clear that the complainant and the appellant knew each other well, they had voluntarily agreed to go to town and eventually to the room but she later changed to say she never consented to the appellant’s actions. I do not find any inconsistence or contradiction in that evidence.
21. Learned counsel then submitted that the appellant’s evidence was not controverted by the prosecution at all and that the trial court did not give it weight in its consideration of the case.
22. The respondents on their part submit that the evidence tendered by the prosecution was cogent and was not rebutted. It was sufficient to prove the case against the appellant.
23. I have considered the grounds set forth by the appellant and the submissions by learned counsels for the appellant and the respondent. The issue for determination is whether or not the trial court arrived at the correct decision considering the evidence on record, to convict the appellant for the offence of rape. In other words, whether the prosecution proved a case of rape against the appellant beyond a reasonable doubt.
24. The offence of rape is provided for under section 3 of the Sexual Offences Act as follows:
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.
4. The ingredients of the offence of rape arising out of this section are therefore intentional and unlawful penetration, lack of consent, or that consent was obtained under duress or coercion. Each of these ingredients needs to be proved by the prosecution beyond a reasonable doubt.
5. The complainant was the only witness to the alleged incident of rape. This is expected given that the incident is said to have happened behind closed doors. The proviso to section 124 of the Evidence Act (Cap 80), Laws of Kenya allows the court to convict based on the evidence of the victim if the court is satisfied that the victim is truthful and proceeds to give reasons for such a belief.
25. I am not persuaded by the appellant’s denial that he did not have sexual intercourse with the complainant at all on that day. I agree with the learned magistrate’s finding that the actions of the appellant in booking a room for the complainant to rest and then going into and staying with her in the room points towards a plan to engage in sexual intercourse with her. The issue in contention which the prosecution alleged and the appellant denied was that the appellant engaged in sexual intercourse with the complainant without her consent.
6. In her judgment, the learned trial magistrate found correctly that the complainant was the only witness to the alleged incident of rape. She then went on to correctly lay out the legal requirements to be satisfied for the court to rely on the evidence of a single witness.
7. But, besides the issue of reliance on the evidence of a single witness, especially on the issue of identification, there is the issue of reliance on the evidence of a single witness as a victim of a sexual offence to convict an accused person. This issue was extensively considered and determined by the High Court, Odunga, J., (as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…
… It is therefore clear that there was no evidence corroborating the evidence of the Complainant regarding the fact of penetration and that the penetration was by the Appellant. In the absence of the said corroboration, the only route towards conviction of the Appellant was to make an express finding that the evidence of the Complainant was truthful.”
8. The High Court came to that finding relying on other cases, among them that of the Court of Appeal in Bernard Kebiba vs. Republic [2000] eKLR where it was stated that:
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
9. From the above exposition of the law, it emerges that the court may proceed to convict an accused person in a sexual offence where the victim is the only witness to any of the ingredients of the offence but the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth.
10. In determining the second issue of truthfulness of the complainant, this court will also consider whether the trial court made it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant. If these pre-requisites are met, then the conviction will be found to be proper.
11. Learned counsel for the appellant submitted that the medical evidence tendered did not corroborate the complainant’s evidence of penile penetration or that if at all, the same was without her consent.
12. However, it has been held that an offence of rape can be proved by oral evidence of the victim or circumstantial evidence without considering the presence or otherwise of medical evidence. This was the holding of the Court of Appeal in the case cited by learned counsel for the respondent of Martin Nyongesa Wanyonyi v Republic [2015] eKLR citing Kassim Ali v Republic Criminal Appeal No 84 of 2005 (Mombasa) where the appellate court stated that:
“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence.”
13. The P3 form for the complainant produced before the trial court showed no evidence to corroborate that of the complainant that the appellant had engaged in sexual intercourse with her as alleged by the complainant. But that cannot be a point to invalidate the conviction. I have found above that the circumstances the appellant operated with the complaint point to him having engaged in sexual intercourse with her. In that case, proof of lack of consent of the sexual intercourse is material.
14. As submitted by learned counsel for the appellant, many, times, the same would be established through presence of lacerations or any signs of lacerations or any other physical injury to the complainant’s genitalia or any other part of the body which would indicate the use of force by the assailant to engage in the act of sexual intercourse with the complainant.
15. Section 42 of the Sexual Offence Act describes consent as follows;
“For the purpose of this Act, a person consents if he or she agrees by choice and has freedom and capacity to make that choice.”
16. Section 43 (1) and (2) of the Sexual Offence Act describes intentional and unlawful acts as follows: -
(1). An act is intentional and unlawful if it is committed-
a. in any coercive circumstance;
b. under false pretenses or by fraudulent means; or
c. in respect of a person who is incapable of appreciating the nature of an act which causes the offence.
(2). The coercive circumstances, referred to in subsection (1)(a) include any circumstances where there is-
a. use of force against the complainant or another person or against the property of the complainant or that of any other person;
b. threat of harm against the complainant or another person or against the property of the complainant or that of any other person; or….
c. abuse of power or authority to the extent that the person in respect of whom an act is committed is inhibited from indicating his or her resistance to such an act, or his or her unwillingness to participate in such an act.”
17. In Republic v Oyier [1985] eKLR, the Court of Appeal held that:
“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 element 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.”
18. The key ingredient of rape is not just penetration as indicated by broken hymen, which is reflected in the P3 form but lack of consent. A charge of rape can only be sustained if that element is proved beyond a reasonable doubt. The prosecution should show that either there was no consent in which case, show that there was some resistance or that consent was obtained through threats, coercion or by any other means well stipulated under section 43 (1) of the Sexual Offences Act as reproduced above. That fact should come out clearly from the evidence.
19. The complainant’s evidence was that the appellant engaged in forceful sexual intercourse with her. It would appear that at some point during their conversation, the complainant mentioned to her mother that the appellant was the one who had hired a room for her to rest. In her evidence, the mother said she spoke to the complainant again at around 10.00 p.m. when she was allegedly crying and that was when she informed her of her alleged ordeal at the hands of the complainant. It is highly probable that this was the time that the complainant informed her mother that she had stayed in a room with the appellant and this caused the mother to become livid. Her mother though said that she received the information at round 7.00 p.m. from her son to whom the complainant had sent a text message. She then called her at around 10.00 p.m.
20. However, the complainant’s brother was not called to corroborate her evidence that she sent a text message or called him at around 6.00 p.m. to tell him about the alleged rape and she never produced the alleged text message even from her own phone to confirm that indeed she sent him a text message. The complainant’s brother was a crucial witness to corroborate the complainant’s story that she indeed sent the message out of the distressed feeling she would be in as a result of the appellant having engaged in forceful sexual intercourse with her. Her mother also alleged that when she called her at 10.00 p.m., she was crying. However, the complainant never said that when she spoke to her mother, she was crying. Indeed, the appellant’s evidence that when he parted ways with the complainant, she was laughing and in good spirits was confirmed by the complainant in cross-examination.
21. The failure to call the complainant’s brother as a witness called for an adverse inference that if called, the brother would have given evidence that was adverse to the case for the prosecution. However, the learned trial magistrate having found that the complainant’s brother was a crucial witness but had not been called to testify, did not apply the test of adverse inference on that failure to make him available. That was an error of law.
22. The learned trial magistrate also found that the complainant failed to report the incident in B. County because she was new around there and that she was staying with the appellant’s daughter. In as much as this court has to respect the findings of fact by the trial court considering that this court did not have the opportunity to hear the evidence of the witnesses firsthand and assess their demeanor, I do not find that to be correct. My finding on the same must be different because the conduct of the complainant does not befit that of a person who intended to report this issue to the authorities at all. That conduct by the complainant is incompatible with her story of having non-consensual sexual intercourse with the appellant. If it was only for the reason that she was going to stay with his daughter, the appellant said in fact it was his brother’s daughter, she would simply have gone back home to her parents and reported.
23. The learned trial magistrate also found corroboration of forceful sexual intercourse in a mild swelling of the complainant’s temporal region as captured in the P3 form. But the complainant disowned that evidence in the P3 form clearly absolving the appellant from any blame of causing her any injury at all or even being injured during the alleged incident.
24. The complainant said that she could not remember if the swelling on the right side of her head had anything to do with the incident and she had no idea if the appellant inflicted the swelling or not. She said that all she knew was that the P3 form said it was there. In other words, she was denying knowledge of existence of a swelling on the right side of her head. Obviously, the cause cannot be attributed to the appellant beyond a reasonable doubt to show that there was corroboration that there was a struggle by way of resistance by the complainant in the course of the sexual intercourse. Therefore, the supposed corroboration of the complainant’s evidence of a struggle with the appellant was not there. Contrary to the learned trial magistrate’s findings, I find that there was no corroboration of forceful sexual intercourse by way of the complainant having been injured in any way by the appellant while they were in the room.
25. In cross-examination, the complainant said that she never told her mother that the appellant raped her because “she was already angry with me because she found out I was in a room with you.” Her mother was angry with her for that. Naturally, the complainant would have to come up with a story to implicate the appellant in order to justify to her mother her reason for being with him in a hotel room. She would not tell her mother that they had consensual sexual intercourse. She had to allege that it was forceful.
26. The complainant also said that the appellant had approached her severally while they were both teachers at C. primary school and she had rebuffed his advances. Yet on this occasion, she accepted to go with the appellant into a hotel room and lock themselves inside. The appellant even left and went outside and came back before he allegedly forced himself on her. In the process, she struggled with him but never raised an alarm yet the room was on the ground floor and there were guests taking meals in the lounge. After the alleged incident, the appellant again left the complainant in the room, went and took a bathe and came back to the room whereupon the complainant also did the same in a bathroom outside the room. The appellant then left and went to do shopping then came back. He found her talking to her mother on phone yet she never mentioned to her the alleged horrible and traumatic incident she had undergone just a few moments before. The appellant then walked her to the bus stage, bought her food and waved her goodbye.
27. While evaluating that evidence, the learned trial magistrate went to question issues that had not been contested by the complainant in a bid to establish that the appellant had formed the intention to have carnal knowledge of the complainant without her consent beforehand and that all the things he did were geared towards giving effect to that intention.
28. For instance, the learned trial magistrate questions why the appellant could not have left the complainant at the bus stage after they had booked the bus, why he did not leave her at the restaurant lounge as he went to run his errands, why he booked the room for them to stay in while waiting for the time to board the bus. She then finds that the complainant had not asked him to do so. However, that was clearly against the complainant’s evidence that when the appellant made the suggestion that they get a room to rest, she agreed. She conceded that she was an adult and she made a conscious decision to go take a rest in the room just as she could have declined the offer. I therefore find that the learned magistrate’s conclusion was based on a faulty assessment of the evidence on record. It was based on a piecemeal and not wholesome assessment of the evidence as it should be done.
29. The evidence of the complainant and that of the appellant taken together shows that right from leaving home at C. for the appellant to escort the complainant to board the bus in Mombasa and even up to the point of the complainant boarding the bus, it was voluntary acts all through without any duress, coercion, intimidation or compulsion on the part of the appellant. It is a reasonable conclusion because, there is evidence that even while she was in the room, the complainant agreed that she spoke to her mother, and this was after the alleged incident, but she never told her of the alleged rape. She only seems to have mentioned to her mother that she was in a room. The learned trial magistrate found that there was no corroboration of the appellant’s evidence that such a call was made. That was clearly wrong for two reasons. First, the appellant’s evidence did not require any corroboration. An accused person’s evidence is sufficient if it is believed and creates a doubt in the mind of the court. Secondly, the complainant in her evidence during cross-examination by the appellant said “yes you found me talking to mum in the room but I never said you raped me…” That was supporting the appellant’s evidence and so the appellant should be believed on that issue.
30. A wholesome evaluation of the evidence by the prosecution and the defence leads to the conclusion that the complainant was not entirely honest to allege that the appellant had forceful sexual intercourse with her. I find that the sexual intercourse was consensual but the complainant succumbed to her mother’s pressure to offer an explanation of how and why she had been in a room with the appellant and thus the allegation of forceful sexual intercourse to her and subsequently to the police and the court.
31. Consequently, I find that the learned trial magistrate erred in convicting the appellant on uncorroborated evidence of the complainant whose evidence could not be said to have been entirely honest and true. I do not believe the appellant’s denial that he never had sexual intercourse with the complainant. The whole story points to them engaging in sexual intercourse with the consent of the complainant. It is evident that once they got into the room and the complainant informed the appellant that she was in her menses, the appellant went outside to get protection. Otherwise there was no other explanation of why he left briefly and came back then did the act and then left to go for shopping. As stated by the complainant, when she came back after being out briefly, she was lying on the bed waiting for him. Otherwise, if she was not consenting, at the very least, she would have sat on the plastic chair in the room or even left the room at that time.
32. The upshot of the analysis is that the appeal is allowed. The appellant’s conviction is quashed and the sentence is set aside. The appellant is hereby set free unless he is lawfully held.
33. Orders accordingly.
34. Right of appeal 14 days explained.
Ruling dated, delivered, and signed in Open Court and Virtual Platform, Teams this 19th day of February 2025
HON. ANDAYI W. F.
JUDGE
In the presence of: -
Ogunah (Ms) for the applicant.
Vallerie (Ms) for the respondent.
Johnson - Court Assistant.
2. In the alternative, he was charged with committing an indecent act with an adult contrary to section 11(A) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same particulars as the principal charge, he intentionally and unlawfully touched the vagina of the said complainant without her consent.
3. He was dissatisfied with his conviction and sentence. He consequently lodged an appeal to the High Court vide a petition of appeal dated 12/11/2024. The grounds of appeal in the petition have set out the matters of law and fact in which the trial court is alleged to have erred. They are that:
a. there was no corroboration of the complainant’s evidence which was full of inconsistencies and doubts and the trial court failed to indicate why it felt safe in the absence of corroboration;
b. the complainant’s missing hymen as per the medical evidence adduced had no connection with the appellant; further the injuries indicated in the P3 form could not be attributed to an alleged struggle between the complainant and the appellant as the report was done four days after the alleged incident.
c. the trial magistrate failed to consider the actions or omissions of the complainant to support her evidence that is:
i. intentionally failing to raise an alarm in the hotel room.
ii. Failure to report the incident to any police station in spite of having adequate time to do so.
iii. Failure to inform the mother about the incident yet they were in contact.
iv. Proceeding with her journey to Bomet in spite of her allegation of the incident having occurred and if it did, the same must have been consensual.
d. Crucial witnesses namely room attendants, the brother of the complainant who according to her evidence was the first person to be informed about the incident.
e. Crucial evidence being excerpts of text messages allegedly sent by the complainant the brother was not produced.
f. There was no investigation of the matter by way of visiting the hotel and/or room where the alleged offence occurred and making available evidence such as receipts for booking at the hotel, CCTV footage, visitors’ record.
g. The trial court relied on circumstantial evidence and the ingredients of the offence were not proved beyond a reasonable doubt.
h. The trial court did not properly analyze and evaluate the appellant’s evidence and submissions.
i. The conviction and sentence were harsh and against the weight of the evidence presented.
4. This being a first appeal, the duty of this court is as was held in the case of Okeno vs. Republic [1972] EA 32 and several other decisions that this court is required to re-examine the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of hearing the witnesses give evidence and observing their demeanor and give allowance for that. This position is reiterated by the Court of Appeal in the case of Gabriel Kamau Njoroge v Republic [1987] KECA 4 (KLR) cited by learned counsel for the appellant.
5. I have re-examined, reanalyzed and re-evaluated the evidence tendered before the trial court with the above principles in mind.
6. The prosecution case was presented by four witnesses PW 1, A.M.M, the complainant; PW 2, M.K., the complainant’s mother; PW 3, PC Julius Anyumba, the investigating officer and PW 4, Beatrice Gitau, a clinical officer based at Msambweni hospital who produced a P3 form in respect of the complainant which was completed by a medical officer who was not available to testify on the material day because she was on duty.
7. The defence case was presented by the appellant and he did not call a witness. He denied that he committed the offence or had sexual intercourse with the complainant at all.
8. The facts not in contention are that the complainant and the appellant were well known to each other. They were both teachers at C. primary school, the complainant having joined the school on PTA terms after her KCSE examinations while the appellant was an old teacher there. On the material day the complainant was travelling to B. County in the Rift Valley region to attend B. university. The appellant picked the complainant from her home in C. village, Kwale County where she was with her mother PW 2 at around 9.00 a.m. or thereabouts and escorted her to Mombasa town where they booked a bus for her to travel to B. County. He also saw her off.
9. It is the complainant’s evidence that after booking the bus at around midday, as it was to leave at around 4.00 p.m. the appellant then urged her to get a place to rest. They looked for a place. After a distance of about 15 minutes’ walk from the bus they had booked, they came to a hotel where the appellant booked a room to rest as they waited for the time to board the bus. The complainant said that there were patrons in the hotel lounge having meals. They went together into the hotel room on the ground floor. The complainant observed that the room had a plastic chair and a bed.
10. The appellant left her in the room for a short while and went outside. He came back and found her seated on the bed. He did not say anything to her. He locked the door but not with a padlock then approached her from the front, grabbed her waist by force and undressed her beginning with her dress, then hijab, then biker and then pulled her panties to the knees and the menstrual pad she had on fell on the floor as she was in her menses. All along, the complainant was struggling with the appellant whereupon the appellant forcefully engaged in sexual intercourse with her without her consent.
11. She travelled to B. County that evening. According to the complainant, she sent a text message to her brother that the appellant had raped her. Her brother informed her mother, PW 2 who made a report to the police station the following day 4/10/2023. She travelled back on 8/10/2023 and went to Msambweni hospital and received medical attention. She recorded her statement with the police whereupon the appellant was arrested and charged.
12. The appellant said in his evidence in defence that he indeed took the complainant to the room for her to rest but denied that he engaged in any sexual intercourse with her. He said that as he was returning to the room, he overheard the complainant talking to her mother on phone but that she never told her that he had raped or attempted to rape her. He said that however, from the complainant’s physical appearance he could tell that she was not in a good mood with her mother who wanted to know why she was in a room. According to him, the complainant’s mother became livid on learning that the complainant had been in a room and he said this could be confirmed from his communication with her later on while she was at college which showed that the complainant’s mother was angry and bitter and demanded her to give a reason why she had found herself in a room. But the complainant never told her mother about the alleged rape incident.
13. Learned counsels for the appellant and the respondent filed submissions urging their respective positions on the matter.
14. The appellant’s counsel submits that the prosecution did not prove a case of rape against the appellant beyond a reasonable doubt. Learned counsel submitted on the grounds set out in the petition of appeal.
15. The first issue was lack of corroboration of the complainant’s evidence. Learned counsel submits that the evidence of rape being from a single witness, the complainant, the trial court believed her but it was full of half-baked truths and contradictions and so it relied upon the same to wrongfully convict the appellant disregarding the appellant’s evidence. Learned counsel takes issue with the fact that no witness such as a worker at the hotel was called to support the complainant’s evidence. It is also her submission that the medical report produced in the case did not support the complainant’s evidence of forceful penile penetration.
16. Learned counsel supports the submission on lack of corroboration with the decision in the case of John Mutua Munyoki v Republic [2017] KECA 376 (KLR) where the Court of Appeal held that:
“In cases where the court has to prefer the evidence of one person against the other, for instance between the accused and the complainant and that is the only evidence, the court must approach such evidence with a degree of circumspection, particularly in sexual offences that are normally committed in secrecy with hardly any eye witness. Contradictions and inconsistencies therefore matter in deciding who to believe.”
17. The second ground submitted upon was that the prosecution failed to call crucial witnesses namely the complainant’s brother who was the first person she allegedly reported the incident of rape to who later informed their mother, PW 2. The prosecution also failed to call any person from the hotel where the alleged incident occurred. Learned counsel cited among other cases, the case of Said Awadhi Mubarak v Republic [2014] KEHC 7276 (KLR) to buttress the submission that the failure to call a crucial witness was fatal to the prosecution case. In that case, the High Court cited the case of Bukenya -vs- Uganda [1972] EA 549, where the Court of Appeal held that a failure to call crucial witnesses by the prosecution entitles the court to make an adverse conclusion against the prosecution case, and acquit the accused person. Learned counsel therefore urged this court to follow these decisions and find in favour of the appellant that the failure to call these witnesses means that if called, their evidence would be unfavourable to the prosecution’s case.
18. Learned counsel also submitted on circumstantial evidence and the threshold of proof citing the celebrated case of R v. Kipkering Arap Koske , (1949) 16 EACA 135. However, considering the evidence on record, I find that little turns on the issue of proof of the case on circumstantial evidence. The main evidence here was direct evidence from the complainant rather than circumstantial.
19. On the issue of consent, learned counsel for the appellant submits that there was lack of corroboration of the complainant’s evidence from the medical evidence which showed that she had no bruises or lacerations on her body to indicate the use of force or struggle between her and the appellant. Learned counsel submits that the complainant never screamed for help, never left the room even when the appellant left her there, she herself went outside to the bathroom, cleaned herself and went back to the appellant who allegedly had sexually assaulted her and that all the circumstances surrounding her being with the appellant on that day speak volumes on her credibility as a witness.
20. Learned counsel also submitted that the trial court failed to consider the inconsistencies and contradiction’s in the complainant’s evidence. She cited several authorities on how the court should proceed to evaluate inconsistencies and contradictions in a case. However, learned counsel has not pointed out the particular instances of contradictions and inconsistencies in the prosecution’s case only stating that the trial court failed to consider them with the seriousness that they deserve. Again, I do not find that there is much that turns on the issue of inconsistencies and contradictions. If there were, they were minor and unworthy of having much effect in terms of creating a doubt on the evidence tendered. The only issue the learned counsel has pointed out is that it was clear that the complainant and the appellant knew each other well, they had voluntarily agreed to go to town and eventually to the room but she later changed to say she never consented to the appellant’s actions. I do not find any inconsistence or contradiction in that evidence.
21. Learned counsel then submitted that the appellant’s evidence was not controverted by the prosecution at all and that the trial court did not give it weight in its consideration of the case.
22. The respondents on their part submit that the evidence tendered by the prosecution was cogent and was not rebutted. It was sufficient to prove the case against the appellant.
23. I have considered the grounds set forth by the appellant and the submissions by learned counsels for the appellant and the respondent. The issue for determination is whether or not the trial court arrived at the correct decision considering the evidence on record, to convict the appellant for the offence of rape. In other words, whether the prosecution proved a case of rape against the appellant beyond a reasonable doubt.
24. The offence of rape is provided for under section 3 of the Sexual Offences Act as follows:
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.
4. The ingredients of the offence of rape arising out of this section are therefore intentional and unlawful penetration, lack of consent, or that consent was obtained under duress or coercion. Each of these ingredients needs to be proved by the prosecution beyond a reasonable doubt.
5. The complainant was the only witness to the alleged incident of rape. This is expected given that the incident is said to have happened behind closed doors. The proviso to section 124 of the Evidence Act (Cap 80), Laws of Kenya allows the court to convict based on the evidence of the victim if the court is satisfied that the victim is truthful and proceeds to give reasons for such a belief.
25. I am not persuaded by the appellant’s denial that he did not have sexual intercourse with the complainant at all on that day. I agree with the learned magistrate’s finding that the actions of the appellant in booking a room for the complainant to rest and then going into and staying with her in the room points towards a plan to engage in sexual intercourse with her. The issue in contention which the prosecution alleged and the appellant denied was that the appellant engaged in sexual intercourse with the complainant without her consent.
6. In her judgment, the learned trial magistrate found correctly that the complainant was the only witness to the alleged incident of rape. She then went on to correctly lay out the legal requirements to be satisfied for the court to rely on the evidence of a single witness.
7. But, besides the issue of reliance on the evidence of a single witness, especially on the issue of identification, there is the issue of reliance on the evidence of a single witness as a victim of a sexual offence to convict an accused person. This issue was extensively considered and determined by the High Court, Odunga, J., (as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…
… It is therefore clear that there was no evidence corroborating the evidence of the Complainant regarding the fact of penetration and that the penetration was by the Appellant. In the absence of the said corroboration, the only route towards conviction of the Appellant was to make an express finding that the evidence of the Complainant was truthful.”
8. The High Court came to that finding relying on other cases, among them that of the Court of Appeal in Bernard Kebiba vs. Republic [2000] eKLR where it was stated that:
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
9. From the above exposition of the law, it emerges that the court may proceed to convict an accused person in a sexual offence where the victim is the only witness to any of the ingredients of the offence but the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth.
10. In determining the second issue of truthfulness of the complainant, this court will also consider whether the trial court made it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant. If these pre-requisites are met, then the conviction will be found to be proper.
11. Learned counsel for the appellant submitted that the medical evidence tendered did not corroborate the complainant’s evidence of penile penetration or that if at all, the same was without her consent.
12. However, it has been held that an offence of rape can be proved by oral evidence of the victim or circumstantial evidence without considering the presence or otherwise of medical evidence. This was the holding of the Court of Appeal in the case cited by learned counsel for the respondent of Martin Nyongesa Wanyonyi v Republic [2015] eKLR citing Kassim Ali v Republic Criminal Appeal No 84 of 2005 (Mombasa) where the appellate court stated that:
“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence.”
13. The P3 form for the complainant produced before the trial court showed no evidence to corroborate that of the complainant that the appellant had engaged in sexual intercourse with her as alleged by the complainant. But that cannot be a point to invalidate the conviction. I have found above that the circumstances the appellant operated with the complaint point to him having engaged in sexual intercourse with her. In that case, proof of lack of consent of the sexual intercourse is material.
14. As submitted by learned counsel for the appellant, many, times, the same would be established through presence of lacerations or any signs of lacerations or any other physical injury to the complainant’s genitalia or any other part of the body which would indicate the use of force by the assailant to engage in the act of sexual intercourse with the complainant.
15. Section 42 of the Sexual Offence Act describes consent as follows;
“For the purpose of this Act, a person consents if he or she agrees by choice and has freedom and capacity to make that choice.”
16. Section 43 (1) and (2) of the Sexual Offence Act describes intentional and unlawful acts as follows: -
(1). An act is intentional and unlawful if it is committed-
a. in any coercive circumstance;
b. under false pretenses or by fraudulent means; or
c. in respect of a person who is incapable of appreciating the nature of an act which causes the offence.
(2). The coercive circumstances, referred to in subsection (1)(a) include any circumstances where there is-
a. use of force against the complainant or another person or against the property of the complainant or that of any other person;
b. threat of harm against the complainant or another person or against the property of the complainant or that of any other person; or….
c. abuse of power or authority to the extent that the person in respect of whom an act is committed is inhibited from indicating his or her resistance to such an act, or his or her unwillingness to participate in such an act.”
17. In Republic v Oyier [1985] eKLR, the Court of Appeal held that:
“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 element 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.”
18. The key ingredient of rape is not just penetration as indicated by broken hymen, which is reflected in the P3 form but lack of consent. A charge of rape can only be sustained if that element is proved beyond a reasonable doubt. The prosecution should show that either there was no consent in which case, show that there was some resistance or that consent was obtained through threats, coercion or by any other means well stipulated under section 43 (1) of the Sexual Offences Act as reproduced above. That fact should come out clearly from the evidence.
19. The complainant’s evidence was that the appellant engaged in forceful sexual intercourse with her. It would appear that at some point during their conversation, the complainant mentioned to her mother that the appellant was the one who had hired a room for her to rest. In her evidence, the mother said she spoke to the complainant again at around 10.00 p.m. when she was allegedly crying and that was when she informed her of her alleged ordeal at the hands of the complainant. It is highly probable that this was the time that the complainant informed her mother that she had stayed in a room with the appellant and this caused the mother to become livid. Her mother though said that she received the information at round 7.00 p.m. from her son to whom the complainant had sent a text message. She then called her at around 10.00 p.m.
20. However, the complainant’s brother was not called to corroborate her evidence that she sent a text message or called him at around 6.00 p.m. to tell him about the alleged rape and she never produced the alleged text message even from her own phone to confirm that indeed she sent him a text message. The complainant’s brother was a crucial witness to corroborate the complainant’s story that she indeed sent the message out of the distressed feeling she would be in as a result of the appellant having engaged in forceful sexual intercourse with her. Her mother also alleged that when she called her at 10.00 p.m., she was crying. However, the complainant never said that when she spoke to her mother, she was crying. Indeed, the appellant’s evidence that when he parted ways with the complainant, she was laughing and in good spirits was confirmed by the complainant in cross-examination.
21. The failure to call the complainant’s brother as a witness called for an adverse inference that if called, the brother would have given evidence that was adverse to the case for the prosecution. However, the learned trial magistrate having found that the complainant’s brother was a crucial witness but had not been called to testify, did not apply the test of adverse inference on that failure to make him available. That was an error of law.
22. The learned trial magistrate also found that the complainant failed to report the incident in B. County because she was new around there and that she was staying with the appellant’s daughter. In as much as this court has to respect the findings of fact by the trial court considering that this court did not have the opportunity to hear the evidence of the witnesses firsthand and assess their demeanor, I do not find that to be correct. My finding on the same must be different because the conduct of the complainant does not befit that of a person who intended to report this issue to the authorities at all. That conduct by the complainant is incompatible with her story of having non-consensual sexual intercourse with the appellant. If it was only for the reason that she was going to stay with his daughter, the appellant said in fact it was his brother’s daughter, she would simply have gone back home to her parents and reported.
23. The learned trial magistrate also found corroboration of forceful sexual intercourse in a mild swelling of the complainant’s temporal region as captured in the P3 form. But the complainant disowned that evidence in the P3 form clearly absolving the appellant from any blame of causing her any injury at all or even being injured during the alleged incident.
24. The complainant said that she could not remember if the swelling on the right side of her head had anything to do with the incident and she had no idea if the appellant inflicted the swelling or not. She said that all she knew was that the P3 form said it was there. In other words, she was denying knowledge of existence of a swelling on the right side of her head. Obviously, the cause cannot be attributed to the appellant beyond a reasonable doubt to show that there was corroboration that there was a struggle by way of resistance by the complainant in the course of the sexual intercourse. Therefore, the supposed corroboration of the complainant’s evidence of a struggle with the appellant was not there. Contrary to the learned trial magistrate’s findings, I find that there was no corroboration of forceful sexual intercourse by way of the complainant having been injured in any way by the appellant while they were in the room.
25. In cross-examination, the complainant said that she never told her mother that the appellant raped her because “she was already angry with me because she found out I was in a room with you.” Her mother was angry with her for that. Naturally, the complainant would have to come up with a story to implicate the appellant in order to justify to her mother her reason for being with him in a hotel room. She would not tell her mother that they had consensual sexual intercourse. She had to allege that it was forceful.
26. The complainant also said that the appellant had approached her severally while they were both teachers at C. primary school and she had rebuffed his advances. Yet on this occasion, she accepted to go with the appellant into a hotel room and lock themselves inside. The appellant even left and went outside and came back before he allegedly forced himself on her. In the process, she struggled with him but never raised an alarm yet the room was on the ground floor and there were guests taking meals in the lounge. After the alleged incident, the appellant again left the complainant in the room, went and took a bathe and came back to the room whereupon the complainant also did the same in a bathroom outside the room. The appellant then left and went to do shopping then came back. He found her talking to her mother on phone yet she never mentioned to her the alleged horrible and traumatic incident she had undergone just a few moments before. The appellant then walked her to the bus stage, bought her food and waved her goodbye.
27. While evaluating that evidence, the learned trial magistrate went to question issues that had not been contested by the complainant in a bid to establish that the appellant had formed the intention to have carnal knowledge of the complainant without her consent beforehand and that all the things he did were geared towards giving effect to that intention.
28. For instance, the learned trial magistrate questions why the appellant could not have left the complainant at the bus stage after they had booked the bus, why he did not leave her at the restaurant lounge as he went to run his errands, why he booked the room for them to stay in while waiting for the time to board the bus. She then finds that the complainant had not asked him to do so. However, that was clearly against the complainant’s evidence that when the appellant made the suggestion that they get a room to rest, she agreed. She conceded that she was an adult and she made a conscious decision to go take a rest in the room just as she could have declined the offer. I therefore find that the learned magistrate’s conclusion was based on a faulty assessment of the evidence on record. It was based on a piecemeal and not wholesome assessment of the evidence as it should be done.
29. The evidence of the complainant and that of the appellant taken together shows that right from leaving home at C. for the appellant to escort the complainant to board the bus in Mombasa and even up to the point of the complainant boarding the bus, it was voluntary acts all through without any duress, coercion, intimidation or compulsion on the part of the appellant. It is a reasonable conclusion because, there is evidence that even while she was in the room, the complainant agreed that she spoke to her mother, and this was after the alleged incident, but she never told her of the alleged rape. She only seems to have mentioned to her mother that she was in a room. The learned trial magistrate found that there was no corroboration of the appellant’s evidence that such a call was made. That was clearly wrong for two reasons. First, the appellant’s evidence did not require any corroboration. An accused person’s evidence is sufficient if it is believed and creates a doubt in the mind of the court. Secondly, the complainant in her evidence during cross-examination by the appellant said “yes you found me talking to mum in the room but I never said you raped me…” That was supporting the appellant’s evidence and so the appellant should be believed on that issue.
30. A wholesome evaluation of the evidence by the prosecution and the defence leads to the conclusion that the complainant was not entirely honest to allege that the appellant had forceful sexual intercourse with her. I find that the sexual intercourse was consensual but the complainant succumbed to her mother’s pressure to offer an explanation of how and why she had been in a room with the appellant and thus the allegation of forceful sexual intercourse to her and subsequently to the police and the court.
31. Consequently, I find that the learned trial magistrate erred in convicting the appellant on uncorroborated evidence of the complainant whose evidence could not be said to have been entirely honest and true. I do not believe the appellant’s denial that he never had sexual intercourse with the complainant. The whole story points to them engaging in sexual intercourse with the consent of the complainant. It is evident that once they got into the room and the complainant informed the appellant that she was in her menses, the appellant went outside to get protection. Otherwise there was no other explanation of why he left briefly and came back then did the act and then left to go for shopping. As stated by the complainant, when she came back after being out briefly, she was lying on the bed waiting for him. Otherwise, if she was not consenting, at the very least, she would have sat on the plastic chair in the room or even left the room at that time.
32. The upshot of the analysis is that the appeal is allowed. The appellant’s conviction is quashed and the sentence is set aside. The appellant is hereby set free unless he is lawfully held.
33. Orders accordingly.
34. Right of appeal 14 days explained.
Ruling dated, delivered, and signed in Open Court and Virtual Platform, Teams this 19th day of February 2025
HON. ANDAYI W. F.
JUDGE
In the presence of: -
Ogunah (Ms) for the applicant.
Vallerie (Ms) for the respondent.
Johnson - Court Assistant.