(Being an Appeal from the judgement and sentence of Honourable F.C Ngetich (RM) dated 28th February, 2025 in Makueni Chief Magistrates Court SO Criminal case Number E029 of 2023).
1. The Appellant, Kyalo Munyao, was convicted and sentenced by the Chief Magistrates Court at Makueni, under Criminal(S0) number E029 of 2023, with the offence of Rape, contrary to Section 3(1)(a)(b)(c) as read with Section 3(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 15th November, 2023, at around 01:00 hours within Kithuki Location, Kathonzweni Sub-County in Makueni County, he intentionally and unlawfully caused his penis to penetrate the vagina of Mumbua Kivenzi Kinyae without her consent.
2. He also faced an alternative count of committing an indecent act with an adult, contrary to Section 11(a) of the Sexual Offences Act. The particulars were that on the same date, time, and location, he intentionally touched the vagina of Mumbua Kivenzi Kinyae with his penis against her will.
3. The prosecution called seven (7) witnesses. PW1 (Mumbua Kivenzi Kinyae - Complainant), a 95-year-old visually impaired woman, testified that an assailant entered her room at night, held her neck to prevent screaming, and forcefully raped her. She relied on her sense of touch, describing the attacker as a youthful man with a small/soft body, a mustache, beard, and long, twisted hair. She states that she was wearing a cap with spikes. In open court, she touched the accused's head and face and positively identified him as the assailant.
4. Cross-examined, she firmly maintained that she was raped. She clarified that the assailant's cap initially felt like it had thorns. When the cap shifted during the struggle, she pushed it aside and was able to directly feel the assailant’s hair. She acknowledged she could not see him and was told his name by those who arrested him, but reiterated that she felt his distinctive hair.
5. PW2 (Kasari Musyoka ), the complainant’s daughter in law, testified that she heard screams coming from the complainant’s house and rushed to her and found the complainant outside, shaking and crying after being raped. She noted mud and semen on the bedding. She stated that neighbors and relatives followed footprints leading directly to the accused's house, where he was found dirty, muddy, and wearing open shoes(Akala Shoes) that perfectly matched the physical prints that came from the complainants house.
6. Upon cross examination, she clarified that she did not personally follow the footprints to the accused's house. Instead, she stayed behind to comfort and protect the complainant, who was deeply shaken and terrified. She maintained that the headman, Nyumba Kumi elder, and others followed the tracks, brought the accused back, and verified that his shoes fit the prints perfectly.
7. PW3 (Jane Maluki), village Elder, received a distress call around 1:45 am and mobilized the Nyumba Kumi elders. She testified that they followed the tracks from the complainant's house to the accused's residence, woke him up, and confirmed his Akalla shoes matched the footprints.
8. On cross examination, she stood by her testimony that the footprints went from the complainant's house straight to the accused's house. She explained that they had the accused remove his shoes to physically test them against the prints, and they matched. She added that a grandchild had spotted someone fleeing the scene with a torch through the shrubs. When interrogated that night, the accused appeared visibly shocked and gave convoluted excuses that did not make sense.
9. PW4 (Peter Wambua - Nyumba Kumi Elder), was woken up by PW3 around 2:30 am. He accompanied the team, using torches to follow the clear footprints that led directly to the accused's home, where they confronted and apprehended the Appellant.
10. Cross-examined, he clarified that while he was one of the individuals who physically tracked the footprints from the road leading to the accused's house, he did not personally witness the accused committing the actual sexual assault.
11. PW5 (David Mulei Musyoka - Grandson), heard his grandmother screaming at 1:00 am while preparing for work. He ran to her house and found her holding onto the wall. He used a torch to follow clear shoe prints through the wet ground to the accused's house, later returning with elders to measure the accused's wet sandals, which perfectly matched the size and print patterns.
12. On cross-examination, he stated that it had rained the previous day, making the mud tracks exceptionally clear. He confirmed they found the accused's shoes wet inside his house. He noted that his grandmother described the attacker's long hair and beard, and when they caught the accused, he tried to lie because he did not expect to be tracked down.
13. PW6 (Benson Musili - Police Officer), received the group at the police post at 5:00 am. He noted that the specific physical attributes described by the blind complainant (youthful masculine build, long hair, beard) perfectly matched the physical characteristics of the accused standing before him.
14. On cross examination, he reaffirmed that the complainant reported being attacked by a young person, explaining that one can easily differentiate a youthful suspect from an elderly person by their muscle tone and masculine nature. He stated the victim explicitly told him the accused was the person who raped her.
15. PW7 (Dr. Stella Muasya - Clinical Officer), medically evaluated the complainant at Makueni Referral Hospital. She found a broken hymen, vaginal wall bruising, minimal bleeding, neck pain from strangulation, and red blood cells in the vaginal swab, confirming non-consensual penile penetration.
16. Cross examined she acknowledged that she could only verify the physical and medical occurrence of rape, but could not scientifically or independently establish the exact identity of the person who committed the crime.
17. Upon being placed on his defence, the appellant (Kyalo Munyao) gave sworn evidence claiming that at 4:00 am, a mob surrounded his house, forced him outside, and made him wear shoes they brought with them. He claimed the shoes did not fit him, he denied owning them, and alleged that one of the villagers beat him and stated he would be charged as an example to others.
18. Cross examined, he confirmed he confirmed he lived near the complainant’s house but that he was asleep at 1:00 am on the night of the incident. He also claimed the villagers told him they found actual physical shoes left behind inside the complainant's house, rather than tracking footprints to his home. He maintained his total innocence.
19. Following the evaluation of both the Prosecution and Defence cases, the trial Court found the accused person guilty as charged and convicted him of the main charge of rape and was sentenced to serve an imprisonment term of 15 years.
20. Dissatisfied with that decision, the Appellant lodged this Appeal vide Memorandum of Appeal dated 9th April, 2025, question both the conviction and sentence meted against him and in particular, arguing two main issues; First that the prosecution case is replete with monumental inconsistencies and contradictions which were material and ought to have attracted acquittal verdict. Secondly, that the learned court erred in both law and fact by failing to consider mitigations/grounds and factors which were supported by evidence and ought to have been put into a consideration while sentencing.
Respondent’s Submissions
21. In their submissions, the Respondent submits that the appeal is devoid of merit and that both the conviction and sentence ought to be upheld. The Respondent then sets out the ingredients of the offence of rape under section 3 of the Sexual Offences Act as proof of penetration, absence of consent, and proof that the appellant was the perpetrator.
22. On penetration, the Respondent argues that the complainant gave a clear and consistent account of how the appellant forcefully had sexual intercourse with her and that her testimony was corroborated by the medical evidence. It was argued that the medical evidence contained in the P3 Form and the PRC Form confirmed injuries consistent with sexual assault and therefore corroborated the complainant's evidence.
23. On the issue of consent, the Respondent contends that the complainant was attacked in her house at night, overpowered and sexually violated against her will, thereby demonstrating that the sexual act was non-consensual. In support of this argument, they relied on Republic v Oyier [1985] KLR 353 for the proposition that consent cannot be inferred where submission is procured by force, fear or intimidation and submits that the circumstances of this case clearly demonstrated the absence of consent.
24. On identification, the Respondent argues that the complainant was able to identify the appellant by touch and by the distinctive physical features she felt during the attack. Further that the complainant's evidence was corroborated by the footprints that were traced from her house directly to the appellant's house.
25. The Respondent argues that the footprints matched the appellant's Akala shoes and that this evidence firmly linked him to the commission of the offence. On that note, it was contended that the evidence adduced by the prosecution formed a complete chain pointing to the appellant as the perpetrator of the offence.
26. Regarding the defence, the Respondent submits that the appellant merely denied the offence and alleged that he had been framed but failed to tender any evidence to support that assertion. It was argued further that the appellant did not demonstrate any grudge or ill motive on the part of the complainant or the prosecution witnesses that would have prompted them to falsely implicate him.
27. On sentence, the Respondent submits that the sentence of fifteen years' imprisonment was lawful and fell within the parameters prescribed under section 3(3) of the Sexual Offences Act. The Respondent further argues that the complainant's advanced age and visual impairment constituted aggravating circumstances warranting a sentence above the statutory minimum.
28. Consequently, the Respondent urges the Court to find that the prosecution proved its case beyond reasonable doubt and to dismiss the appeal in its entirety.
Analysis and Determination
29. This Court has considered the material placed before it, the evidence for the Prosecution and the defence as well as the submissions made in this appeal. This is a first appellate court, this court is obliged to analyse and evaluated afresh all the evidence adduced before the lower court and to draw its own conclusions while bearing in mind that it neither saw nor heard any of the witnesses. This was stated by the Court of Appeal in Okeno vs. Republic [1972] EA 32 where the Court of Appeal set out the duties of a first appellate court as follows:-
“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala Vs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”
30. The main offence in which the Appellant herein was convicted of is rape. Section 3 of the Sexual Offences Act states that:-
“ (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.”.”
31. Section 43 of the Sexual offences Act provides that;-
“ (1)An act is intentional and unlawful if it is committed—(a)in any coercive circumstance;(b)under false pretences 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.(3)False pretences or fraudulent means, referred to in subsection (1)(b), include circumstances where a person—(a)in respect of whom an act is being committed, is led to believe that he or she is committing such an act with a particular person who is in fact a different person;(b)in respect of whom an act is being committed, is led to believe that such an act is something other than that act; or(c)intentionally fails to disclose to the person in respect of whom an act is being committed, that he or she is infected by HIV or any other life-threatening sexually transmissible disease.(4)The circumstances in which a person is incapable in law of appreciating the nature of an act referred to in subsection (1) include circumstances where such a person is, at the time of the commission of such act—(a)asleep;(b)unconscious;(c)in an altered state of consciousness;(d)under the influence of medicine, drug, alcohol or other substance to the extent that the person's consciousness or judgment is adversely affected;(e)mentally impaired; or(f)a child.(5)This section shall not apply in respect of persons who are lawfully married to each other.”
32. In light of the above provisions, it is clear that a person is guilty of rape if he/she commits sexual intercourse with another person either against their will or without their consent as enumerated under the Section 43 of the Sexual offences Act, cited above.
33. The ingredients of the offence of rape therefore include intentional and unlawful penetration of the genital organ of one person by another, coupled with the absence of consent. These ingredients were elaborated by the Court of Appeal in Republic v Francis Otieno Oyier [1985] KECA 55 (KLR), where the Court held as follows:-
“The prosecution still had to prove the second element of the offence of rape, and that is lack of consent for as the predecessor of this Court said in Upar v Uganda [1971] EA 98, lack of consent always remains an essential element of the crime of rape and so it should be specifically dealt with.The learned magistrate had the correct appreciation of the mens rea in rape. It is primarily an intention and not state of mind. Thus the mental element is to have intercourse without consent, or not caring whether the woman consented or not: DPP v Morgan (1975) 61 Cr Appl. R 136 HL The prosecution must prove either 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; Archbold Criminal Pleading Evidence and Practice 40th Edn pp 1411 – 1412 paragraph 2881 and R v Harwood K (1966) 50 CR App R 56. So if 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.”
34. In light of the foregoing, the first issue for determination is whether there was intentional and unlawful penetration of the genital organ of the Complainant. The complainant, an elderly and visually impaired woman aged about 95 years, gave direct evidence of the act of penetration. She testified that on the material night, at about 1.00 a.m., she was asleep in her house, having secured the door with a stone because the lock was broken. While asleep, a young man entered the house and forcefully had sex with her. She stated that she was covered with a blanket when the assailant came into the room, started forcing her and kept touching her. When she attempted to inquire who he was, he remained silent and held her by the neck so that she could not scream. The assailant then uncovered her, inserted his penis into her vagina, causing her a lot of pain, threw her onto the bed and lay on top of her. After finishing the act, he ran away without saying anything, whereupon she moved to the door and began screaming for help.
35. The complainant's evidence was further corroborated by the testimony of PW2, who found the complainant distressed, shaking and crying immediately after the incident. PW2 also observed semen and mud on the complainant's beddings. The presence of semen in the complainant's sleeping area was consistent with her account that sexual intercourse had taken place.
36. Further corroboration was provided by the medical documents produced in evidence, namely the PRC Form and P3 Form. This medical evidence supported the complainant's assertion that she had been sexually assaulted. In that it was noted that her vagina wall had fresh bruises.
37. Accordingly, this Court is satisfied that the prosecution proved the element of penetration beyond any reasonable doubt.
38. On whether the penetration occurred Without the Complainant's Consent. Sections 3(1)(a) and (c) of the Sexual Offences Act require the prosecution to prove that the accused intentionally and unlawfully caused penetration and that the act occurred without the consent of the complainant or that such consent was obtained by force, threats or intimidation.
39. Section 43 of the Act further provides that an act is intentional and unlawful if it is committed in coercive circumstances or without the free and voluntary agreement of the complainant.
40. In the present case, the evidence on record overwhelmingly demonstrates that the sexual act was intentional, unlawful and non-consensual. The complainant testified that while asleep in her house at about 1.00a.m, an intruder entered her room, climbed onto her bed, removed her covering and inserted his penis into her vagina. She further stated that when she attempted to speak and raise alarm, the assailant held her by the neck and prevented her from screaming.
41. It is thus clear that the circumstances under which the act was committed negate any possibility of consent. The complainant was attacked in the middle of the night in the safety of her home, overpowered and sexually violated against her will. Her evidence was that she felt pain and fear during the ordeal. Immediately thereafter, PW2 found her crying, trembling and visibly distressed. She informed PW2 that she had been raped and even declined to stay in her house by herself because of fear. Her conduct immediately after the incident is wholly inconsistent with consensual sexual intercourse.
42. Further, the complainant was an elderly woman aged approximately 95 years and was visually impaired. These factors rendered her particularly vulnerable to intimidation and coercion. The assailant's actions of restraining her and using physical force clearly demonstrate that the sexual act was accomplished through force and without her free and voluntary agreement.
43. In Republic v Oyier [1985] (Supra), the Court observed that consent cannot be inferred where submission is induced by fear, force or intimidation. Similarly, under section 43 of the Sexual Offences Act, consent obtained in coercive circumstances is not consent in law.
44. From the evidence on record, there can be no doubt that the perpetrator deliberately entered the complainant's house and intentionally engaged in sexual intercourse with her. The act was not accidental, nor was it authorized. The use of force and the complainant's immediate complaint after the incident irresistibly lead to the conclusion that the sexual intercourse was intentional, unlawful and without the complainant's consent.
45. The appellant's defence did not address the issue of consent at all. He did not suggest that there existed any relationship between him and the complainant, that the sexual act was consensual, or that he had any lawful justification for being in the complainant's house at the material time. His defence amounted to a bare denial and an allegation that he had been framed. A mere denial cannot displace the direct evidence of the complainant and the corroborative medical evidence demonstrating that the complainant had been subjected to forcible sexual intercourse.
46. This Court finds the prosecution had proved beyond reasonable doubt that the penetration was intentionally and unlawfully caused and that it occurred without the consent of the complainant.
47. On whether the Appellant was Positively Identified as the Perpetrator, the prosecution's case rested on both direct and circumstantial evidence. Although the complainant was visually impaired and could not identify the assailant by sight, she testified that during the attack she touched him and was able to observe his physical features by feel. She described him as a young man with long, twisted hair extending to the neck, a beard and a moustache and stated that she would be able to recognize him if she touched him again. The trial court afforded her the opportunity to do so, and upon touching the appellant's head and face in court, she positively identified him as the person who had raped her.
48. In addition, immediately after the incident, PW3, PW4 and PW6 testified that they in company of others followed some footprints from the complainant's house which led them directly to the appellant's house. On further scrutiny, they found that the footprints matched the appellant's Akala shoes, which were recovered from his house and were found to be wet and muddy.
49. The Appellant's defence was that he heard dogs barking at around 4.00 a.m., came outside and found people surrounding his house. He stated that the people handed him shoes and accused him of rape. However, he did not deny that the shoes matched the footprints found at the scene. Neither did he allege any existing grudge between him and the complainant or any of the prosecution witnesses that would have motivated them to falsely implicate him. His allegation of being framed remained a mere assertion unsupported by any evidence.
50. In this Court’s view, the circumstantial evidence of the footprints leading directly to the appellant's house, coupled with the complainant's identification by touch and the absence of any evidence of malice or fabrication, forms a complete chain of evidence pointing irresistibly to the appellant as the perpetrator of the offence.
51. It is therefore, the finding of this Court that the prosecution proved beyond reasonable doubt that it was the appellant who raped the complainant.
52. Upon considering the entire evidence on record, this Court is satisfied that the prosecution proved all the ingredients of the offence of rape. Consequently, the offence of rape contrary to section 3(1)(a) and (c) as read with section 3(3) of the Sexual Offences Act was proved beyond any reasonable doubt.
53. In so far as the sentence imposed upon the Appellant is concerned, section 3(3) of the Sexual Offences Act prescribes a sentence of imprisonment for a term of not less than ten years, which may be enhanced to imprisonment for life. The trial court sentenced the Appellant to fifteen (15) years' imprisonment after considering his mitigation, the pre-sentence report and the circumstances under which the offence was committed.
54. I find no fault with the sentence imposed. The record discloses significant aggravating circumstances which justified the imposition of a sentence above the statutory minimum. The complainant was an elderly woman in her sunset years, aged approximately ninety-five (95) years, and was visually impaired, rendering her particularly vulnerable and incapable of protecting herself from the attack. The offence was perpetrated in the sanctity of her home in the dead of night and involved the deliberate sexual violation of an elderly and disabled victim.
55. In the circumstances, I am satisfied that the trial court properly exercised its discretion in imposing a sentence of fifteen (15) years' imprisonment. The sentence was lawful, proportionate and commensurate with the gravity of the offence.
56. I further note that the trial court duly took into account the period the Appellant had spent in custody, from 17th November 2023 to 15th January 2024, in compliance with section 333(2) of the Criminal Procedure Code. Consequently, there exists no basis upon which this Court can interfere with the sentence.
Disposition
57. In the result, I find that the appeal against both conviction and sentence is devoid of merit and is hereby dismissed in its entirety.
DATED, SIGNED AND DELIVERED AT NAIROBI, THIS 17TH DAY OF JULY, 2026, VIRTUALLY THROUGH THE TEAMS MICROSOFT PLATFORM.
KENNEDY KANDET
JUDGE
IN THE PRESENCE OF:
APPELLANT FROM MAKUENI PRISON
MUSANGO FOR THE STATE
COURT ASSISTANT: JAEL NOSIM
1. The Appellant, Kyalo Munyao, was convicted and sentenced by the Chief Magistrates Court at Makueni, under Criminal(S0) number E029 of 2023, with the offence of Rape, contrary to Section 3(1)(a)(b)(c) as read with Section 3(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 15th November, 2023, at around 01:00 hours within Kithuki Location, Kathonzweni Sub-County in Makueni County, he intentionally and unlawfully caused his penis to penetrate the vagina of Mumbua Kivenzi Kinyae without her consent.
2. He also faced an alternative count of committing an indecent act with an adult, contrary to Section 11(a) of the Sexual Offences Act. The particulars were that on the same date, time, and location, he intentionally touched the vagina of Mumbua Kivenzi Kinyae with his penis against her will.
3. The prosecution called seven (7) witnesses. PW1 (Mumbua Kivenzi Kinyae - Complainant), a 95-year-old visually impaired woman, testified that an assailant entered her room at night, held her neck to prevent screaming, and forcefully raped her. She relied on her sense of touch, describing the attacker as a youthful man with a small/soft body, a mustache, beard, and long, twisted hair. She states that she was wearing a cap with spikes. In open court, she touched the accused's head and face and positively identified him as the assailant.
4. Cross-examined, she firmly maintained that she was raped. She clarified that the assailant's cap initially felt like it had thorns. When the cap shifted during the struggle, she pushed it aside and was able to directly feel the assailant’s hair. She acknowledged she could not see him and was told his name by those who arrested him, but reiterated that she felt his distinctive hair.
5. PW2 (Kasari Musyoka ), the complainant’s daughter in law, testified that she heard screams coming from the complainant’s house and rushed to her and found the complainant outside, shaking and crying after being raped. She noted mud and semen on the bedding. She stated that neighbors and relatives followed footprints leading directly to the accused's house, where he was found dirty, muddy, and wearing open shoes(Akala Shoes) that perfectly matched the physical prints that came from the complainants house.
6. Upon cross examination, she clarified that she did not personally follow the footprints to the accused's house. Instead, she stayed behind to comfort and protect the complainant, who was deeply shaken and terrified. She maintained that the headman, Nyumba Kumi elder, and others followed the tracks, brought the accused back, and verified that his shoes fit the prints perfectly.
7. PW3 (Jane Maluki), village Elder, received a distress call around 1:45 am and mobilized the Nyumba Kumi elders. She testified that they followed the tracks from the complainant's house to the accused's residence, woke him up, and confirmed his Akalla shoes matched the footprints.
8. On cross examination, she stood by her testimony that the footprints went from the complainant's house straight to the accused's house. She explained that they had the accused remove his shoes to physically test them against the prints, and they matched. She added that a grandchild had spotted someone fleeing the scene with a torch through the shrubs. When interrogated that night, the accused appeared visibly shocked and gave convoluted excuses that did not make sense.
9. PW4 (Peter Wambua - Nyumba Kumi Elder), was woken up by PW3 around 2:30 am. He accompanied the team, using torches to follow the clear footprints that led directly to the accused's home, where they confronted and apprehended the Appellant.
10. Cross-examined, he clarified that while he was one of the individuals who physically tracked the footprints from the road leading to the accused's house, he did not personally witness the accused committing the actual sexual assault.
11. PW5 (David Mulei Musyoka - Grandson), heard his grandmother screaming at 1:00 am while preparing for work. He ran to her house and found her holding onto the wall. He used a torch to follow clear shoe prints through the wet ground to the accused's house, later returning with elders to measure the accused's wet sandals, which perfectly matched the size and print patterns.
12. On cross-examination, he stated that it had rained the previous day, making the mud tracks exceptionally clear. He confirmed they found the accused's shoes wet inside his house. He noted that his grandmother described the attacker's long hair and beard, and when they caught the accused, he tried to lie because he did not expect to be tracked down.
13. PW6 (Benson Musili - Police Officer), received the group at the police post at 5:00 am. He noted that the specific physical attributes described by the blind complainant (youthful masculine build, long hair, beard) perfectly matched the physical characteristics of the accused standing before him.
14. On cross examination, he reaffirmed that the complainant reported being attacked by a young person, explaining that one can easily differentiate a youthful suspect from an elderly person by their muscle tone and masculine nature. He stated the victim explicitly told him the accused was the person who raped her.
15. PW7 (Dr. Stella Muasya - Clinical Officer), medically evaluated the complainant at Makueni Referral Hospital. She found a broken hymen, vaginal wall bruising, minimal bleeding, neck pain from strangulation, and red blood cells in the vaginal swab, confirming non-consensual penile penetration.
16. Cross examined she acknowledged that she could only verify the physical and medical occurrence of rape, but could not scientifically or independently establish the exact identity of the person who committed the crime.
17. Upon being placed on his defence, the appellant (Kyalo Munyao) gave sworn evidence claiming that at 4:00 am, a mob surrounded his house, forced him outside, and made him wear shoes they brought with them. He claimed the shoes did not fit him, he denied owning them, and alleged that one of the villagers beat him and stated he would be charged as an example to others.
18. Cross examined, he confirmed he confirmed he lived near the complainant’s house but that he was asleep at 1:00 am on the night of the incident. He also claimed the villagers told him they found actual physical shoes left behind inside the complainant's house, rather than tracking footprints to his home. He maintained his total innocence.
19. Following the evaluation of both the Prosecution and Defence cases, the trial Court found the accused person guilty as charged and convicted him of the main charge of rape and was sentenced to serve an imprisonment term of 15 years.
20. Dissatisfied with that decision, the Appellant lodged this Appeal vide Memorandum of Appeal dated 9th April, 2025, question both the conviction and sentence meted against him and in particular, arguing two main issues; First that the prosecution case is replete with monumental inconsistencies and contradictions which were material and ought to have attracted acquittal verdict. Secondly, that the learned court erred in both law and fact by failing to consider mitigations/grounds and factors which were supported by evidence and ought to have been put into a consideration while sentencing.
Respondent’s Submissions
21. In their submissions, the Respondent submits that the appeal is devoid of merit and that both the conviction and sentence ought to be upheld. The Respondent then sets out the ingredients of the offence of rape under section 3 of the Sexual Offences Act as proof of penetration, absence of consent, and proof that the appellant was the perpetrator.
22. On penetration, the Respondent argues that the complainant gave a clear and consistent account of how the appellant forcefully had sexual intercourse with her and that her testimony was corroborated by the medical evidence. It was argued that the medical evidence contained in the P3 Form and the PRC Form confirmed injuries consistent with sexual assault and therefore corroborated the complainant's evidence.
23. On the issue of consent, the Respondent contends that the complainant was attacked in her house at night, overpowered and sexually violated against her will, thereby demonstrating that the sexual act was non-consensual. In support of this argument, they relied on Republic v Oyier [1985] KLR 353 for the proposition that consent cannot be inferred where submission is procured by force, fear or intimidation and submits that the circumstances of this case clearly demonstrated the absence of consent.
24. On identification, the Respondent argues that the complainant was able to identify the appellant by touch and by the distinctive physical features she felt during the attack. Further that the complainant's evidence was corroborated by the footprints that were traced from her house directly to the appellant's house.
25. The Respondent argues that the footprints matched the appellant's Akala shoes and that this evidence firmly linked him to the commission of the offence. On that note, it was contended that the evidence adduced by the prosecution formed a complete chain pointing to the appellant as the perpetrator of the offence.
26. Regarding the defence, the Respondent submits that the appellant merely denied the offence and alleged that he had been framed but failed to tender any evidence to support that assertion. It was argued further that the appellant did not demonstrate any grudge or ill motive on the part of the complainant or the prosecution witnesses that would have prompted them to falsely implicate him.
27. On sentence, the Respondent submits that the sentence of fifteen years' imprisonment was lawful and fell within the parameters prescribed under section 3(3) of the Sexual Offences Act. The Respondent further argues that the complainant's advanced age and visual impairment constituted aggravating circumstances warranting a sentence above the statutory minimum.
28. Consequently, the Respondent urges the Court to find that the prosecution proved its case beyond reasonable doubt and to dismiss the appeal in its entirety.
Analysis and Determination
29. This Court has considered the material placed before it, the evidence for the Prosecution and the defence as well as the submissions made in this appeal. This is a first appellate court, this court is obliged to analyse and evaluated afresh all the evidence adduced before the lower court and to draw its own conclusions while bearing in mind that it neither saw nor heard any of the witnesses. This was stated by the Court of Appeal in Okeno vs. Republic [1972] EA 32 where the Court of Appeal set out the duties of a first appellate court as follows:-
“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala Vs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”
30. The main offence in which the Appellant herein was convicted of is rape. Section 3 of the Sexual Offences Act states that:-
“ (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.”.”
31. Section 43 of the Sexual offences Act provides that;-
“ (1)An act is intentional and unlawful if it is committed—(a)in any coercive circumstance;(b)under false pretences 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.(3)False pretences or fraudulent means, referred to in subsection (1)(b), include circumstances where a person—(a)in respect of whom an act is being committed, is led to believe that he or she is committing such an act with a particular person who is in fact a different person;(b)in respect of whom an act is being committed, is led to believe that such an act is something other than that act; or(c)intentionally fails to disclose to the person in respect of whom an act is being committed, that he or she is infected by HIV or any other life-threatening sexually transmissible disease.(4)The circumstances in which a person is incapable in law of appreciating the nature of an act referred to in subsection (1) include circumstances where such a person is, at the time of the commission of such act—(a)asleep;(b)unconscious;(c)in an altered state of consciousness;(d)under the influence of medicine, drug, alcohol or other substance to the extent that the person's consciousness or judgment is adversely affected;(e)mentally impaired; or(f)a child.(5)This section shall not apply in respect of persons who are lawfully married to each other.”
32. In light of the above provisions, it is clear that a person is guilty of rape if he/she commits sexual intercourse with another person either against their will or without their consent as enumerated under the Section 43 of the Sexual offences Act, cited above.
33. The ingredients of the offence of rape therefore include intentional and unlawful penetration of the genital organ of one person by another, coupled with the absence of consent. These ingredients were elaborated by the Court of Appeal in Republic v Francis Otieno Oyier [1985] KECA 55 (KLR), where the Court held as follows:-
“The prosecution still had to prove the second element of the offence of rape, and that is lack of consent for as the predecessor of this Court said in Upar v Uganda [1971] EA 98, lack of consent always remains an essential element of the crime of rape and so it should be specifically dealt with.The learned magistrate had the correct appreciation of the mens rea in rape. It is primarily an intention and not state of mind. Thus the mental element is to have intercourse without consent, or not caring whether the woman consented or not: DPP v Morgan (1975) 61 Cr Appl. R 136 HL The prosecution must prove either 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; Archbold Criminal Pleading Evidence and Practice 40th Edn pp 1411 – 1412 paragraph 2881 and R v Harwood K (1966) 50 CR App R 56. So if 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.”
34. In light of the foregoing, the first issue for determination is whether there was intentional and unlawful penetration of the genital organ of the Complainant. The complainant, an elderly and visually impaired woman aged about 95 years, gave direct evidence of the act of penetration. She testified that on the material night, at about 1.00 a.m., she was asleep in her house, having secured the door with a stone because the lock was broken. While asleep, a young man entered the house and forcefully had sex with her. She stated that she was covered with a blanket when the assailant came into the room, started forcing her and kept touching her. When she attempted to inquire who he was, he remained silent and held her by the neck so that she could not scream. The assailant then uncovered her, inserted his penis into her vagina, causing her a lot of pain, threw her onto the bed and lay on top of her. After finishing the act, he ran away without saying anything, whereupon she moved to the door and began screaming for help.
35. The complainant's evidence was further corroborated by the testimony of PW2, who found the complainant distressed, shaking and crying immediately after the incident. PW2 also observed semen and mud on the complainant's beddings. The presence of semen in the complainant's sleeping area was consistent with her account that sexual intercourse had taken place.
36. Further corroboration was provided by the medical documents produced in evidence, namely the PRC Form and P3 Form. This medical evidence supported the complainant's assertion that she had been sexually assaulted. In that it was noted that her vagina wall had fresh bruises.
37. Accordingly, this Court is satisfied that the prosecution proved the element of penetration beyond any reasonable doubt.
38. On whether the penetration occurred Without the Complainant's Consent. Sections 3(1)(a) and (c) of the Sexual Offences Act require the prosecution to prove that the accused intentionally and unlawfully caused penetration and that the act occurred without the consent of the complainant or that such consent was obtained by force, threats or intimidation.
39. Section 43 of the Act further provides that an act is intentional and unlawful if it is committed in coercive circumstances or without the free and voluntary agreement of the complainant.
40. In the present case, the evidence on record overwhelmingly demonstrates that the sexual act was intentional, unlawful and non-consensual. The complainant testified that while asleep in her house at about 1.00a.m, an intruder entered her room, climbed onto her bed, removed her covering and inserted his penis into her vagina. She further stated that when she attempted to speak and raise alarm, the assailant held her by the neck and prevented her from screaming.
41. It is thus clear that the circumstances under which the act was committed negate any possibility of consent. The complainant was attacked in the middle of the night in the safety of her home, overpowered and sexually violated against her will. Her evidence was that she felt pain and fear during the ordeal. Immediately thereafter, PW2 found her crying, trembling and visibly distressed. She informed PW2 that she had been raped and even declined to stay in her house by herself because of fear. Her conduct immediately after the incident is wholly inconsistent with consensual sexual intercourse.
42. Further, the complainant was an elderly woman aged approximately 95 years and was visually impaired. These factors rendered her particularly vulnerable to intimidation and coercion. The assailant's actions of restraining her and using physical force clearly demonstrate that the sexual act was accomplished through force and without her free and voluntary agreement.
43. In Republic v Oyier [1985] (Supra), the Court observed that consent cannot be inferred where submission is induced by fear, force or intimidation. Similarly, under section 43 of the Sexual Offences Act, consent obtained in coercive circumstances is not consent in law.
44. From the evidence on record, there can be no doubt that the perpetrator deliberately entered the complainant's house and intentionally engaged in sexual intercourse with her. The act was not accidental, nor was it authorized. The use of force and the complainant's immediate complaint after the incident irresistibly lead to the conclusion that the sexual intercourse was intentional, unlawful and without the complainant's consent.
45. The appellant's defence did not address the issue of consent at all. He did not suggest that there existed any relationship between him and the complainant, that the sexual act was consensual, or that he had any lawful justification for being in the complainant's house at the material time. His defence amounted to a bare denial and an allegation that he had been framed. A mere denial cannot displace the direct evidence of the complainant and the corroborative medical evidence demonstrating that the complainant had been subjected to forcible sexual intercourse.
46. This Court finds the prosecution had proved beyond reasonable doubt that the penetration was intentionally and unlawfully caused and that it occurred without the consent of the complainant.
47. On whether the Appellant was Positively Identified as the Perpetrator, the prosecution's case rested on both direct and circumstantial evidence. Although the complainant was visually impaired and could not identify the assailant by sight, she testified that during the attack she touched him and was able to observe his physical features by feel. She described him as a young man with long, twisted hair extending to the neck, a beard and a moustache and stated that she would be able to recognize him if she touched him again. The trial court afforded her the opportunity to do so, and upon touching the appellant's head and face in court, she positively identified him as the person who had raped her.
48. In addition, immediately after the incident, PW3, PW4 and PW6 testified that they in company of others followed some footprints from the complainant's house which led them directly to the appellant's house. On further scrutiny, they found that the footprints matched the appellant's Akala shoes, which were recovered from his house and were found to be wet and muddy.
49. The Appellant's defence was that he heard dogs barking at around 4.00 a.m., came outside and found people surrounding his house. He stated that the people handed him shoes and accused him of rape. However, he did not deny that the shoes matched the footprints found at the scene. Neither did he allege any existing grudge between him and the complainant or any of the prosecution witnesses that would have motivated them to falsely implicate him. His allegation of being framed remained a mere assertion unsupported by any evidence.
50. In this Court’s view, the circumstantial evidence of the footprints leading directly to the appellant's house, coupled with the complainant's identification by touch and the absence of any evidence of malice or fabrication, forms a complete chain of evidence pointing irresistibly to the appellant as the perpetrator of the offence.
51. It is therefore, the finding of this Court that the prosecution proved beyond reasonable doubt that it was the appellant who raped the complainant.
52. Upon considering the entire evidence on record, this Court is satisfied that the prosecution proved all the ingredients of the offence of rape. Consequently, the offence of rape contrary to section 3(1)(a) and (c) as read with section 3(3) of the Sexual Offences Act was proved beyond any reasonable doubt.
53. In so far as the sentence imposed upon the Appellant is concerned, section 3(3) of the Sexual Offences Act prescribes a sentence of imprisonment for a term of not less than ten years, which may be enhanced to imprisonment for life. The trial court sentenced the Appellant to fifteen (15) years' imprisonment after considering his mitigation, the pre-sentence report and the circumstances under which the offence was committed.
54. I find no fault with the sentence imposed. The record discloses significant aggravating circumstances which justified the imposition of a sentence above the statutory minimum. The complainant was an elderly woman in her sunset years, aged approximately ninety-five (95) years, and was visually impaired, rendering her particularly vulnerable and incapable of protecting herself from the attack. The offence was perpetrated in the sanctity of her home in the dead of night and involved the deliberate sexual violation of an elderly and disabled victim.
55. In the circumstances, I am satisfied that the trial court properly exercised its discretion in imposing a sentence of fifteen (15) years' imprisonment. The sentence was lawful, proportionate and commensurate with the gravity of the offence.
56. I further note that the trial court duly took into account the period the Appellant had spent in custody, from 17th November 2023 to 15th January 2024, in compliance with section 333(2) of the Criminal Procedure Code. Consequently, there exists no basis upon which this Court can interfere with the sentence.
Disposition
57. In the result, I find that the appeal against both conviction and sentence is devoid of merit and is hereby dismissed in its entirety.
DATED, SIGNED AND DELIVERED AT NAIROBI, THIS 17TH DAY OF JULY, 2026, VIRTUALLY THROUGH THE TEAMS MICROSOFT PLATFORM.
KENNEDY KANDET
JUDGE
IN THE PRESENCE OF:
APPELLANT FROM MAKUENI PRISON
MUSANGO FOR THE STATE
COURT ASSISTANT: JAEL NOSIM