The charge preferred against the Appellant, James Kiplimo alias Makini at the
lower court was that of Rape, Contrary to Section 3[1][a] of the Sexual
Offences Act and in the alternative, the charge of committing an indecent act
with an adult, Contrary to Section 11[a] of the Sexual Offences Act. It was
alleged that 28
th June 2022 at Kiptek Village Kabisaga Location within Nandi
County the Appellant raped Jennifer Maswai or committed an indecent act with
her by touching her female sexual organ with his male sexual organ.
2. After the trial before the principal magistrate at Kabiyet and in a judgment
delivered on 5
th September 2024, the trial court convicted the Appellant on the
main count and sentenced him to ten [10] years imprisonment. He was
aggrieved by the outcome and opted to file the present appeal on the basis of the
grounds contained in the petition of appeal which he argued herein by way of his
written submissions.
3. Generally, the Appellant complains that the trial court erred in law and fact by
dismissing his defence and holding that the prosecution case had been proved to
the required standards. That, the trial court failed to address the issue pertaining
to the complainants truthfulness or credibility and disregarded his mitigation
thereby imposing a sentence which was too harsh.
4. The Appellant therefore prays for his conviction by the trial court to be quashed or
set aside along with the sentence imposed upon him.
The Prosecution/State/ Respondent opposed the appeal and argued its
opposition by way of written submissions. This court has considered the appeal,
the supporting grounds and the rival submissions and in fulfilment of its obligation
revisited the evidence bearing in mind that the trial court had the benefit of seeing
and hearing the witnesses.
5. In that regard, the prosecution evidence against the Appellant through its five [5]
prosecution witnesses [i.e. PW1, 2, 3, 4 and 5] was considered against that of
the Appellant and his witnesses [DW2 and DW3] in defence.
In this court’s opinion what clearly emerged as the main issue for determination
was whether the Appellant obtained the Complainant’s consent in order to
engage in sexual intercourse with her. In other words, was there a consensus
between the Appellant and the Complainant [PW1] to engage in sex.
6. Section 3 of the Sexual Offences Act defines the offence of rape and states that
a person commits rape if they intentionally and unlawfully cause penetration with
their genital organs into another person’s genitals, anus or mouth without
consent, or if consent is obtained by force, threats or intimidation. This definition
in essence covers nonconsensual penetration or sexual intercourse.
7. A person found guilty of rape is liable to imprisonment for a term of not less than
ten [10] years, which may be enhanced to life imprisonment if the circumstances
of the case permits.
The trial court considered the evidence led by the prosecution against the
Appellant and found that the Complainant had indeed been raped by the
Appellant.
8. In so finding, the trial court rendered itself as follows: -
“The Complainant did not consent to the Sexual Act, she
testified that the Accused had threatened her the Accused in his
defence confirmed to have committed the offence but the
Complainant had agreed to the Sexual Act which the court finds
was not established in evidence.
I find that the Accused having been accorded an opportunity to
cross-examine the Complainant did not ask her of the issue that
this line of defence was an afterthought.”
9. A reconsideration of the evidence by this court revealed that the Appellant did not
admit committing the offence, but rather engaging in sexual intercourse with the
Complainant. He stated in his defence that they were all drunk when they
engaged in sex and this happened after he talked with the Complainant. He
therefore implied that the Sexual Act was voluntary and consensual.
10. The offence being criminal in nature, no obligation was placed upon the
Appellant to prove his innocence. On the Contrary, the obligation to prove the
guilt of the Appellant lay squarely on the prosecution upon a standard of proof of
beyond reasonable doubt.
11. In her evidence, the Complainant Jennifer Maswao [PW1], indicated that
she was heading home on the material date at 1:00pm when she met the
Appellant and asked him to show her, her sister’s house. The two walked
together and passed through an isolated maize plantation when the Appellant
allegedly way laid her [Complainant] causing her to scream on sensing danger.
He allegedly drew out a knife and she fell down while attempting to run away. He
pressed her down even though she was weak due to her leukemia illness.
12. The Complainant indicated further that a person who attempted to come to
her rescue was scared away by the Appellant after which the Appellant
proceeded to rape her with his clothes on and after tearing the Complainant’s
panties. She bled during the forceful sexual intercourse and when the Appellant
was done he ran towards a river. She then picked herself up and reported the
matter to the area chief before proceedings to Kabiyet Hospital where she was
admitted for two [2] days.
13. Nicholas Maiyo [PW1] indicated that he saw the Appellant and the
Complainant walking together heading to a nearby home. Shortly thereafter, he
heard the Complainant scream and ran towards the direction of the screams at a
shamba. The appellant who was his nephew told him [PW2] to go away from the
scene. He left but returned later only to find the appellant allegedly raping the
Complainant. He [Appellant] chased him away.
14. The witness [PW2] also indicated that he could not come to the aid of the
Complainant because he did not know the nature of her relationship with the
Appellant. He actually did not know whether the two had any sort of
relationship. He said that the Complainant later appeared at the local market
and alleged that the Appellant had raped her. The matter was reported to the
police and the Appellant was arrested.
15. The Area Assistant Chief Edwin Kiptanui [PW3], indicated that a person
called Eliud Murgor called him at 5:00pm on the material date and informed him
that a woman had been raped. The chief then proceeded to a place called Teltet
and found the woman. He interrogated the woman before referring her to the
police. It was notable that the chief did not identify or make any attempt to
identify the Complainant as being the offended woman. Nevertheless, it was
assumed and it appeared as much that the Complainant was the said woman, a
fact not disputed by the Appellant.
16. A Clinical Officer, Kimutai Bor[PW4], examined the Complainant and
compiled the necessary police medical examination report [P3 Form] [P. Exhibit
1[b] which indicated that the Complainant was on her menstrual period and had
no injuries to her genitalia, but had tenderness around the neck which was
classified as harm.
17. Although there was no dispute that the Complainant and the appellant
engaged in sexual intercourse on the material date whether lawfully or unlawfully
the medical evidence by the Clinical Officer [PW4] seemingly overruled the
element of force in the act contrary to what was portrayed by the Complainant in
her evidence. It was clearly shown that the bleeding experienced by the
Complainant was not as a result of a forceful or violent sexual intercourse, but as
a result of the Complainants menses or menstrual cycle.
18. On whether there was a sort of relationship between the Appellant and the
complainant, the Complainant was economical with the truth. On one hand, her
evidence indicated that the Appellant was not a stranger and was previously
known to her and on the other hand, the evidence indicated that the Appellant
was a stranger to her and took advantage of her when she requested him to
show her the place and house of her sister.
19. Basically, this was a case based on the credibility of the Complainant if
there was to be a safe conviction of the Appellant by the trial court. The case
was solely dependent on the word of the Complainant against that of the
Appellant particularly with regard to the element of consent whose existence or
absence in relation to the Complainant was the determinant factor in establishing
and proving the offence of rape against the Appellant.
20. Apparently, the trial court believed the Complainant on account of the fact
that the Appellant admitted the offence and that when he was given the
opportunity to cross-examine the Complaint he did not raise the issue of consent.
As it were, the Appellant was required to prove his innocence, a burden or
obligation which could not in law be placed upon him regard being given to the
circumstances of the case and the fact that the burden to prove his guilt beyond
reasonable doubt was in law placed upon the prosecution.
21. Although the trial court had the benefit of seeing the witnesses and make
findings on their credibility, in this case the court did not make such findings and
demonstrate why the testimony of the Complainant had to be believed as against
that of the Appellant more so considering that the Complainant flip flopped on the
question of consent and her actual relationship with the Appellant. She also lied
when she implied that she bled during the impugned sexual act as a result of
being violently and forcefully “penetrated” by the Appellant.
22. In essence, the complainant’s evidence was not reliable in the attempt by
the Prosecution to prove that she never consented to sexual intercourse with the
Appellant. The possibility that she actually did consent to the act was very high
consideration being given to her tainted credibility.
For all the factors and reasons foregoing this court does not think that the charge
was proved beyond reasonable doubt against the Appellant.
23. Consequently, this appeal is merited and is hereby allowed. The appellant’s
conviction by the trial court is hereby quashed and the ten year imprisonment
sentence imposed upon him is set aside. The appellant be set at liberty forthwith
unless otherwise lawfully held.
Ordered accordingly.
Dated and Delivered this 2
nd day of April, 2026
lower court was that of Rape, Contrary to Section 3[1][a] of the Sexual
Offences Act and in the alternative, the charge of committing an indecent act
with an adult, Contrary to Section 11[a] of the Sexual Offences Act. It was
alleged that 28
th June 2022 at Kiptek Village Kabisaga Location within Nandi
County the Appellant raped Jennifer Maswai or committed an indecent act with
her by touching her female sexual organ with his male sexual organ.
2. After the trial before the principal magistrate at Kabiyet and in a judgment
delivered on 5
th September 2024, the trial court convicted the Appellant on the
main count and sentenced him to ten [10] years imprisonment. He was
aggrieved by the outcome and opted to file the present appeal on the basis of the
grounds contained in the petition of appeal which he argued herein by way of his
written submissions.
3. Generally, the Appellant complains that the trial court erred in law and fact by
dismissing his defence and holding that the prosecution case had been proved to
the required standards. That, the trial court failed to address the issue pertaining
to the complainants truthfulness or credibility and disregarded his mitigation
thereby imposing a sentence which was too harsh.
4. The Appellant therefore prays for his conviction by the trial court to be quashed or
set aside along with the sentence imposed upon him.
The Prosecution/State/ Respondent opposed the appeal and argued its
opposition by way of written submissions. This court has considered the appeal,
the supporting grounds and the rival submissions and in fulfilment of its obligation
revisited the evidence bearing in mind that the trial court had the benefit of seeing
and hearing the witnesses.
5. In that regard, the prosecution evidence against the Appellant through its five [5]
prosecution witnesses [i.e. PW1, 2, 3, 4 and 5] was considered against that of
the Appellant and his witnesses [DW2 and DW3] in defence.
In this court’s opinion what clearly emerged as the main issue for determination
was whether the Appellant obtained the Complainant’s consent in order to
engage in sexual intercourse with her. In other words, was there a consensus
between the Appellant and the Complainant [PW1] to engage in sex.
6. Section 3 of the Sexual Offences Act defines the offence of rape and states that
a person commits rape if they intentionally and unlawfully cause penetration with
their genital organs into another person’s genitals, anus or mouth without
consent, or if consent is obtained by force, threats or intimidation. This definition
in essence covers nonconsensual penetration or sexual intercourse.
7. A person found guilty of rape is liable to imprisonment for a term of not less than
ten [10] years, which may be enhanced to life imprisonment if the circumstances
of the case permits.
The trial court considered the evidence led by the prosecution against the
Appellant and found that the Complainant had indeed been raped by the
Appellant.
8. In so finding, the trial court rendered itself as follows: -
“The Complainant did not consent to the Sexual Act, she
testified that the Accused had threatened her the Accused in his
defence confirmed to have committed the offence but the
Complainant had agreed to the Sexual Act which the court finds
was not established in evidence.
I find that the Accused having been accorded an opportunity to
cross-examine the Complainant did not ask her of the issue that
this line of defence was an afterthought.”
9. A reconsideration of the evidence by this court revealed that the Appellant did not
admit committing the offence, but rather engaging in sexual intercourse with the
Complainant. He stated in his defence that they were all drunk when they
engaged in sex and this happened after he talked with the Complainant. He
therefore implied that the Sexual Act was voluntary and consensual.
10. The offence being criminal in nature, no obligation was placed upon the
Appellant to prove his innocence. On the Contrary, the obligation to prove the
guilt of the Appellant lay squarely on the prosecution upon a standard of proof of
beyond reasonable doubt.
11. In her evidence, the Complainant Jennifer Maswao [PW1], indicated that
she was heading home on the material date at 1:00pm when she met the
Appellant and asked him to show her, her sister’s house. The two walked
together and passed through an isolated maize plantation when the Appellant
allegedly way laid her [Complainant] causing her to scream on sensing danger.
He allegedly drew out a knife and she fell down while attempting to run away. He
pressed her down even though she was weak due to her leukemia illness.
12. The Complainant indicated further that a person who attempted to come to
her rescue was scared away by the Appellant after which the Appellant
proceeded to rape her with his clothes on and after tearing the Complainant’s
panties. She bled during the forceful sexual intercourse and when the Appellant
was done he ran towards a river. She then picked herself up and reported the
matter to the area chief before proceedings to Kabiyet Hospital where she was
admitted for two [2] days.
13. Nicholas Maiyo [PW1] indicated that he saw the Appellant and the
Complainant walking together heading to a nearby home. Shortly thereafter, he
heard the Complainant scream and ran towards the direction of the screams at a
shamba. The appellant who was his nephew told him [PW2] to go away from the
scene. He left but returned later only to find the appellant allegedly raping the
Complainant. He [Appellant] chased him away.
14. The witness [PW2] also indicated that he could not come to the aid of the
Complainant because he did not know the nature of her relationship with the
Appellant. He actually did not know whether the two had any sort of
relationship. He said that the Complainant later appeared at the local market
and alleged that the Appellant had raped her. The matter was reported to the
police and the Appellant was arrested.
15. The Area Assistant Chief Edwin Kiptanui [PW3], indicated that a person
called Eliud Murgor called him at 5:00pm on the material date and informed him
that a woman had been raped. The chief then proceeded to a place called Teltet
and found the woman. He interrogated the woman before referring her to the
police. It was notable that the chief did not identify or make any attempt to
identify the Complainant as being the offended woman. Nevertheless, it was
assumed and it appeared as much that the Complainant was the said woman, a
fact not disputed by the Appellant.
16. A Clinical Officer, Kimutai Bor[PW4], examined the Complainant and
compiled the necessary police medical examination report [P3 Form] [P. Exhibit
1[b] which indicated that the Complainant was on her menstrual period and had
no injuries to her genitalia, but had tenderness around the neck which was
classified as harm.
17. Although there was no dispute that the Complainant and the appellant
engaged in sexual intercourse on the material date whether lawfully or unlawfully
the medical evidence by the Clinical Officer [PW4] seemingly overruled the
element of force in the act contrary to what was portrayed by the Complainant in
her evidence. It was clearly shown that the bleeding experienced by the
Complainant was not as a result of a forceful or violent sexual intercourse, but as
a result of the Complainants menses or menstrual cycle.
18. On whether there was a sort of relationship between the Appellant and the
complainant, the Complainant was economical with the truth. On one hand, her
evidence indicated that the Appellant was not a stranger and was previously
known to her and on the other hand, the evidence indicated that the Appellant
was a stranger to her and took advantage of her when she requested him to
show her the place and house of her sister.
19. Basically, this was a case based on the credibility of the Complainant if
there was to be a safe conviction of the Appellant by the trial court. The case
was solely dependent on the word of the Complainant against that of the
Appellant particularly with regard to the element of consent whose existence or
absence in relation to the Complainant was the determinant factor in establishing
and proving the offence of rape against the Appellant.
20. Apparently, the trial court believed the Complainant on account of the fact
that the Appellant admitted the offence and that when he was given the
opportunity to cross-examine the Complaint he did not raise the issue of consent.
As it were, the Appellant was required to prove his innocence, a burden or
obligation which could not in law be placed upon him regard being given to the
circumstances of the case and the fact that the burden to prove his guilt beyond
reasonable doubt was in law placed upon the prosecution.
21. Although the trial court had the benefit of seeing the witnesses and make
findings on their credibility, in this case the court did not make such findings and
demonstrate why the testimony of the Complainant had to be believed as against
that of the Appellant more so considering that the Complainant flip flopped on the
question of consent and her actual relationship with the Appellant. She also lied
when she implied that she bled during the impugned sexual act as a result of
being violently and forcefully “penetrated” by the Appellant.
22. In essence, the complainant’s evidence was not reliable in the attempt by
the Prosecution to prove that she never consented to sexual intercourse with the
Appellant. The possibility that she actually did consent to the act was very high
consideration being given to her tainted credibility.
For all the factors and reasons foregoing this court does not think that the charge
was proved beyond reasonable doubt against the Appellant.
23. Consequently, this appeal is merited and is hereby allowed. The appellant’s
conviction by the trial court is hereby quashed and the ten year imprisonment
sentence imposed upon him is set aside. The appellant be set at liberty forthwith
unless otherwise lawfully held.
Ordered accordingly.
Dated and Delivered this 2
nd day of April, 2026