(being an Appeal against the Judgment and Conviction of the Principal Magistrate’s Court at Kaloleni Hon. Hon. R.M Amwayi Principal Magistrate delivered on 14 th April, 2025)
Introduction.
The appellant was charged with the offence of rape contrary to Section 3(10 (a) (b) of the Sexual Offences Act. The allegations were that on 16 th January, 2025 around 1300hrs at Boyani area in Rabai Sub County of Kilifi County within the Coast Region intentionally and unlawfully caused his male genital organ namely the penis penetrate into the female organ namely vagine of Z.T.W.
The appellant faced an alternative charge of committing an indecent act with an adult contrary to Section 11 of the Sexual Offences Act. It was alleged that on 16 th January, 2025 at around 1300hrs at Boyani area in Rabai Sub County of Kilifi County within the Coast Region intentionally and unlawfully committed an indecent act to Z.T.W by touching her vagina using his genital hands.
The appellant denied the charges when he was arraigned in court. The matter proceeded before the trial magistrate with four witnesses giving evidence against the appellant. The appellant when placed on his defence by the trial court he opted to give a sworn testimony. In a judgment delivered on 14 th April, 2025 the trial magistrate found the appellant guilty of the main charge of rape contrary to Section 3(1)(a)(b) of the Sexual Offences Act and convicted him and subsequently sentenced him to serve 10 years imprisonment.
The appellant aggrieved with the conviction and sentence by the trial court preferred this appeal. He raised several grounds in his amended grounds of appeal to wit;
1. That the learned trial magistrate erred in law and facts for not appreciating that the said incident had implied and express consent of the complainant;
2. The learned trial magistrate erred in law and fact for not observing that the evidence adduced by the victim was procured through threats;
3. That the learned trial magistrate erred in law and fact for misdirecting herself on the evidence adduced before the her;
4. That the learned trial magistrate erred in law and fact for not observing that the prosecution case was not proved beyond reasonable doubt as required; and
5. That the learned trial magistrate erred in law and fact for failing to consider that the charge sheet was incurable defective under Section 134 of the Criminal Procedure Code.
The appellant urged the court to reverse the finding of the trial court.
Prosecution Case.
As earlier indicated the prosecution case was based on the evidence of four witnesses. Briefly the prosecution case was that PW2 the complainant testified that on the 16 th January, 2025 around 1pm she was at her mother’s Kiosk. She left to home. On her way she met with the appellant who called her. The appellant was from the washroom which is near the Kiosk. She went to where the appellant was and on asking her why he was calling him, he pulled her into his house, locked the house, undressed her and placed her on the floor and raped her. She said she did not consent to sexual intercourse with him. It is her evidence that the appellant used force. Her attempted to resist did not deter the appellant from penetrating her who told her that he loved her. She said the appellant overpowered her. She said at the time of the incident there were no people around. After the incident the appellant was done, he left and went to work. He gave her the padlock and told her to lock the house. She then dressed up and went home. Upon arriving at home her mother told her that she had seen her coming from the appellant house and wanted to know what she was doing in the appellant’s house. She lied to her that she was not from the appellant’s house. It is after the mother threatened her that she told her the truth. It is then that the matter was reported to the chief and later to the police station. She was taken to Rabai Health Center for examination. Later a P3 Form was filled at Mariakani Sub County hospital.
In cross-examination by the appellant, she said she was with her sister at the Kiosk. She maintained that the appellant called her into his house and he pulled her into his house and forcefully hade sexual intercourse with her. She said much as she tried to resist the appellant overpowered her and that he had locked the house from inside. She said after the incident the appellant gave her the padlock to lock the door. She then went home and took shower.
PW3 the mother of the complainant told the court that on the material date she saw the complainant locking the appellant’s door. She later asked her why she was in the appellant’s house. The complainant was reluctant to tell her what she was doing in the appellant’s house. When she threatened her, she told her that the appellant had called her in his house and raped her. Later she informed the complainant’s uncle and the appellant was arrested.
In cross-examination she maintained that she saw the complainant locking the appellant’s house but when she asked her what she was doing in the house she said the appellant had raped her.
PW1 the Clinician examined the complainant on allegations of rape. It is his evidence that at the time of examination the complainant had changed clothes, showered and passed urine and stool and was sober. She did not have physical injuries on her body and the genitalia was normal but painful with swollen and bruised labia. The hymen was also broken. He produced the P3 Form as exhibit.
In cross-examination he confirmed that the complainant had showered and changed clothes and thus they were unable to find spermatozoa. He however said that the complainant had freshly broken hymen.
PW4 investigated the matter. Her evidence was that a case of rape had been reported at the station and the same was minuted to her to investigate. She interrogated the complainant who narrated to her what had happened to her. She later arrested the appellant and charged her with the offence.
Defence case.
The appellant told the trial court that on the material date he had come from work around 1pm. After taking his lunch and as he prepared to go back to work the complainant came to her house and asked for water. He gave her water. She told her that she will be travelling to her grandfather’s home in Shika Adabu. He told her to lock his house and left. In the evening when he came back from work, he found the complainant’s mother at her Kiosk. Later the complainant in the company of her mother and uncles came. As he was on his way home, he received a phone call from his landlord who told him that he had received message that he had done something bad and that he had locked his house. he looked for a place to stay until 5 th February, 2025 when he was arrested.
Submissions.
The appellant in his submissions argued that maintained that the prosecution did not prove the element of lack of consent as required. He submitted that the circumstances of the case excluded the element of consent as it was not proved that he physically used force hence the charge of rape was not proved as required. He also argued that the evidence of the complainant’s mother that the complainant told her that she was raped after threats clearly shows that the complainant was not a straightforward witness. He further argued that the complainant’s evidence was not corroborated by independent evidence as is required under Section 124 of the Evidence Act. He cited the case of Ndung’u Kimani vs R (1976-80) KLR. The appellant argued that the alleged injuries found on the complainant’s genitalia were not positive consonant with the offence of rape.
The prosecution on the other hand argued that the case was proved as required as the same was supported by medical evidence and the evidence of the complainant. It was also submitted that there was no doubt that the appellant was positively identified as he was known to the complainant and her mother. Further the prosecution argued that the evidence adduced as to pushing the complainant by the appellant to ground, undressing her against her will and threatening and having sex with demonstrated that there was no consent as alleged by the appellant. It was the respondent’s submissions that the evidence looked at in totality proved the offence of rape.
Analysis and determination.
It is trite that the duty of the first appellate court is to re-evaluate and reconsider the evidence adduced before the trial court and make its own independent decision noting that it did not have the opportunity to hear and see the witnesses testify unlike the trial court. This principle was laid down on myriads of court decisions among them the case of Okeno vs Republic (1972) E.E 32.
Further to the foregoing it is the duty of the prosecution to prove the charges against the accused beyond reasonable doubt as stated in among other decisions the case of Stephen Nguli Mulili vs Republic (2014) e KLR.
In the instant case the appellant was charged and convicted of the offence of rape contrary to Section 3(1)(a) (3) of the Sexual Offences Act which provides that:
“3(1) A person commits the offence termed as rape if-
(a) He or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;
(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.”
Regarding the offence of rape, the essential ingredient was stated in the case of Republic vs Oyier (1985) KLR where the Court of Appeal held that:
1. 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.
2. 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.
3. Where a woman yields through fear of death, or through duress, it is rape and it is no excuse that the woman consented first, if the offence was afterwards committed by force or against her will; nor is it any excuse that she consented after the fact.”
Bearing the aforesaid in mind and having evaluated the evidence adduced by the prosecution, there is no doubt from the evidence of the complainant that she had sex with the appellant. This fact is discernable from the evidence of the complainant and the medical evidence adduced by PW1 who found that the complainant had been penetrated. The crucial issue in this case is whether the sexual intercourse was without the consent of the complainant. The evidence by the complainant and the appellant defence is that the complainant went to the appellant’s house. Much as the complainant in her evidence created the impression that the appellant pulled her into his house and had sex with her, it is abundantly clear that the complainant went to the appellant’s house, and from then circumstances to wit that the appellant left her in the house and even gave her the padlock to lock the house is consonant with lack of consent. If it were to be said that the complainant did not consent, it is inconceivable why she accepted to be left in the house of the appellant. Further it appears that the complainant stated that the appellant forced her into having sex because she was threatened by her mother as to why she was in the appellant’s house. In my mind and from the evaluation of the evidence adduced, it is my respectful view that the complainant alleged that she was raped because she was questioned by her mother as to why she was in the appellant’s house. If it were not for that, it is likely that the complainant would not have alleged that she was raped by the appellant.
In my view the trial court was incorrect to find that the complainant did not consent to the sexual intercourse with the appellant in view of the foregoing. Consequently, I find that the trial court was wrong to convict the appellant in the circumstances and the appeal herein is merited and I allow the same and quash the finding of the trial court and acquit the appellant herein.
Dated, signed and delivered virtually this 9 th day of July 2026.
F.N Kyambia
Judge.
2
Introduction.
The appellant was charged with the offence of rape contrary to Section 3(10 (a) (b) of the Sexual Offences Act. The allegations were that on 16 th January, 2025 around 1300hrs at Boyani area in Rabai Sub County of Kilifi County within the Coast Region intentionally and unlawfully caused his male genital organ namely the penis penetrate into the female organ namely vagine of Z.T.W.
The appellant faced an alternative charge of committing an indecent act with an adult contrary to Section 11 of the Sexual Offences Act. It was alleged that on 16 th January, 2025 at around 1300hrs at Boyani area in Rabai Sub County of Kilifi County within the Coast Region intentionally and unlawfully committed an indecent act to Z.T.W by touching her vagina using his genital hands.
The appellant denied the charges when he was arraigned in court. The matter proceeded before the trial magistrate with four witnesses giving evidence against the appellant. The appellant when placed on his defence by the trial court he opted to give a sworn testimony. In a judgment delivered on 14 th April, 2025 the trial magistrate found the appellant guilty of the main charge of rape contrary to Section 3(1)(a)(b) of the Sexual Offences Act and convicted him and subsequently sentenced him to serve 10 years imprisonment.
The appellant aggrieved with the conviction and sentence by the trial court preferred this appeal. He raised several grounds in his amended grounds of appeal to wit;
1. That the learned trial magistrate erred in law and facts for not appreciating that the said incident had implied and express consent of the complainant;
2. The learned trial magistrate erred in law and fact for not observing that the evidence adduced by the victim was procured through threats;
3. That the learned trial magistrate erred in law and fact for misdirecting herself on the evidence adduced before the her;
4. That the learned trial magistrate erred in law and fact for not observing that the prosecution case was not proved beyond reasonable doubt as required; and
5. That the learned trial magistrate erred in law and fact for failing to consider that the charge sheet was incurable defective under Section 134 of the Criminal Procedure Code.
The appellant urged the court to reverse the finding of the trial court.
Prosecution Case.
As earlier indicated the prosecution case was based on the evidence of four witnesses. Briefly the prosecution case was that PW2 the complainant testified that on the 16 th January, 2025 around 1pm she was at her mother’s Kiosk. She left to home. On her way she met with the appellant who called her. The appellant was from the washroom which is near the Kiosk. She went to where the appellant was and on asking her why he was calling him, he pulled her into his house, locked the house, undressed her and placed her on the floor and raped her. She said she did not consent to sexual intercourse with him. It is her evidence that the appellant used force. Her attempted to resist did not deter the appellant from penetrating her who told her that he loved her. She said the appellant overpowered her. She said at the time of the incident there were no people around. After the incident the appellant was done, he left and went to work. He gave her the padlock and told her to lock the house. She then dressed up and went home. Upon arriving at home her mother told her that she had seen her coming from the appellant house and wanted to know what she was doing in the appellant’s house. She lied to her that she was not from the appellant’s house. It is after the mother threatened her that she told her the truth. It is then that the matter was reported to the chief and later to the police station. She was taken to Rabai Health Center for examination. Later a P3 Form was filled at Mariakani Sub County hospital.
In cross-examination by the appellant, she said she was with her sister at the Kiosk. She maintained that the appellant called her into his house and he pulled her into his house and forcefully hade sexual intercourse with her. She said much as she tried to resist the appellant overpowered her and that he had locked the house from inside. She said after the incident the appellant gave her the padlock to lock the door. She then went home and took shower.
PW3 the mother of the complainant told the court that on the material date she saw the complainant locking the appellant’s door. She later asked her why she was in the appellant’s house. The complainant was reluctant to tell her what she was doing in the appellant’s house. When she threatened her, she told her that the appellant had called her in his house and raped her. Later she informed the complainant’s uncle and the appellant was arrested.
In cross-examination she maintained that she saw the complainant locking the appellant’s house but when she asked her what she was doing in the house she said the appellant had raped her.
PW1 the Clinician examined the complainant on allegations of rape. It is his evidence that at the time of examination the complainant had changed clothes, showered and passed urine and stool and was sober. She did not have physical injuries on her body and the genitalia was normal but painful with swollen and bruised labia. The hymen was also broken. He produced the P3 Form as exhibit.
In cross-examination he confirmed that the complainant had showered and changed clothes and thus they were unable to find spermatozoa. He however said that the complainant had freshly broken hymen.
PW4 investigated the matter. Her evidence was that a case of rape had been reported at the station and the same was minuted to her to investigate. She interrogated the complainant who narrated to her what had happened to her. She later arrested the appellant and charged her with the offence.
Defence case.
The appellant told the trial court that on the material date he had come from work around 1pm. After taking his lunch and as he prepared to go back to work the complainant came to her house and asked for water. He gave her water. She told her that she will be travelling to her grandfather’s home in Shika Adabu. He told her to lock his house and left. In the evening when he came back from work, he found the complainant’s mother at her Kiosk. Later the complainant in the company of her mother and uncles came. As he was on his way home, he received a phone call from his landlord who told him that he had received message that he had done something bad and that he had locked his house. he looked for a place to stay until 5 th February, 2025 when he was arrested.
Submissions.
The appellant in his submissions argued that maintained that the prosecution did not prove the element of lack of consent as required. He submitted that the circumstances of the case excluded the element of consent as it was not proved that he physically used force hence the charge of rape was not proved as required. He also argued that the evidence of the complainant’s mother that the complainant told her that she was raped after threats clearly shows that the complainant was not a straightforward witness. He further argued that the complainant’s evidence was not corroborated by independent evidence as is required under Section 124 of the Evidence Act. He cited the case of Ndung’u Kimani vs R (1976-80) KLR. The appellant argued that the alleged injuries found on the complainant’s genitalia were not positive consonant with the offence of rape.
The prosecution on the other hand argued that the case was proved as required as the same was supported by medical evidence and the evidence of the complainant. It was also submitted that there was no doubt that the appellant was positively identified as he was known to the complainant and her mother. Further the prosecution argued that the evidence adduced as to pushing the complainant by the appellant to ground, undressing her against her will and threatening and having sex with demonstrated that there was no consent as alleged by the appellant. It was the respondent’s submissions that the evidence looked at in totality proved the offence of rape.
Analysis and determination.
It is trite that the duty of the first appellate court is to re-evaluate and reconsider the evidence adduced before the trial court and make its own independent decision noting that it did not have the opportunity to hear and see the witnesses testify unlike the trial court. This principle was laid down on myriads of court decisions among them the case of Okeno vs Republic (1972) E.E 32.
Further to the foregoing it is the duty of the prosecution to prove the charges against the accused beyond reasonable doubt as stated in among other decisions the case of Stephen Nguli Mulili vs Republic (2014) e KLR.
In the instant case the appellant was charged and convicted of the offence of rape contrary to Section 3(1)(a) (3) of the Sexual Offences Act which provides that:
“3(1) A person commits the offence termed as rape if-
(a) He or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;
(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.”
Regarding the offence of rape, the essential ingredient was stated in the case of Republic vs Oyier (1985) KLR where the Court of Appeal held that:
1. 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.
2. 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.
3. Where a woman yields through fear of death, or through duress, it is rape and it is no excuse that the woman consented first, if the offence was afterwards committed by force or against her will; nor is it any excuse that she consented after the fact.”
Bearing the aforesaid in mind and having evaluated the evidence adduced by the prosecution, there is no doubt from the evidence of the complainant that she had sex with the appellant. This fact is discernable from the evidence of the complainant and the medical evidence adduced by PW1 who found that the complainant had been penetrated. The crucial issue in this case is whether the sexual intercourse was without the consent of the complainant. The evidence by the complainant and the appellant defence is that the complainant went to the appellant’s house. Much as the complainant in her evidence created the impression that the appellant pulled her into his house and had sex with her, it is abundantly clear that the complainant went to the appellant’s house, and from then circumstances to wit that the appellant left her in the house and even gave her the padlock to lock the house is consonant with lack of consent. If it were to be said that the complainant did not consent, it is inconceivable why she accepted to be left in the house of the appellant. Further it appears that the complainant stated that the appellant forced her into having sex because she was threatened by her mother as to why she was in the appellant’s house. In my mind and from the evaluation of the evidence adduced, it is my respectful view that the complainant alleged that she was raped because she was questioned by her mother as to why she was in the appellant’s house. If it were not for that, it is likely that the complainant would not have alleged that she was raped by the appellant.
In my view the trial court was incorrect to find that the complainant did not consent to the sexual intercourse with the appellant in view of the foregoing. Consequently, I find that the trial court was wrong to convict the appellant in the circumstances and the appeal herein is merited and I allow the same and quash the finding of the trial court and acquit the appellant herein.
Dated, signed and delivered virtually this 9 th day of July 2026.
F.N Kyambia
Judge.
2