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JudgmentMiltone Mghanga Mtoto VS The Republic4 min read

Miltone Mghanga Mtoto VS The Republic

High Court at Voi High Court · · George. Dulu


(From the conviction and sentence in Sexual Offence Case No. E034 of 2021 at Voi Law Courts delivered on 18th July 2023 by Hon. A. M. Obura (Mrs.) (CM)

  1. The appellant was charged with rape contrary to Section 3(1)(a)(b)(3) of the Sexual Offences Act No. 3 of 2006, the particulars of which being that on 12th December 2021 at around 0300hours at Mariwenyi area in Voi Sub County within Taita-Taveta County intentionally and unlawfully caused his penis to penetrate the vagina of S.S.M without her consent.
  2. In the alternative, he was charged with committing an indecent act with an adult contrary to Section 11(A) of the Sexual Offences Act, the particulars of which being that on the same date and place intentionally touched the vagina of S.S.M with his penis without her consent.
  3. He denied both charges.  After a full trial, he was convicted of the main count of rape and sentenced to ten (10) years imprisonment.
  4. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal and relied upon the following amended grounds of appeal:-
  5. The trial Magistrate erred in law and facts when she convicted the appellant yet failed to see that the prosecution failed to prove the alleged facts as required by Section 107 Evidence Act.
  6. The trial Magistrate erred by convicting the appellant to ten (10) years imprisonment without considering that the duty bestowed on the prosecution was never discharged.
  7. The Magistrate erred by convicting the appellant yet failed to observe that the medical evidence was in authentically and incredibly adduced.
  8. The trial Magistrate erred when convicted the appellant yet failed to observe that crucial witness was never summoned to testify.
  9. The appeal was canvassed through written submissions.  In this regard, I have perused and considered the submissions filed by the appellant as well as the submissions filed by the Director of Public Prosecutions.
  10. This being a first appeal, I have to start by reminding myself that I am duty bound to evaluate all the evidence on record afresh and come to my own independent conclusions and inferences – see Okeno =Versus= Republic (1972) EA 32.
  11. In proving their case, the prosecution called three (3) witnesses.  On their part, the appellant tendered sworn defence testimony, and did not call any additional evidence.
  12. The appellant was convicted of rape, which is the act of sexual penetration without the consent of the victim.
  13. From the evidence on record, the appellant and the victim PW1 Sheila Mwenda knew each other before.  They had met previously, and both agreed in evidence on record that the appellant had dropped PW1 the victim at Taita Taveta University on a previous day, using a motor cycle.
  14. Both also agree that they met the day in question at night and that the appellant carried the victim on a motor bike from a club.  They also both agree that sexual intercourse between them occurred. 
  15. However, while the victim PW1 says that sexual intercourse was without consent in the dark bush, the appellant defended himself stating that sexual intercourse occurred in his house and was consensual at a fee, but that the victim later demanded for 5,000/= instead of the agreed amount of 3,000/=, and thus the disagreement and subsequent false report to the police of rape made against him.

  1. In my view, from the evidence on record, the sworn defence of the appellant was an afterthought as no relevant questions were asked by him to PW1 to suggest such a defence.  The appellant did not also indicate to the police that what he said in court was what happened.
  2. In addition, the evidence of the doctor PW2 Joto Nyawa confirmed that mud was found in the vagina of the victim (PW1), as well as lacerations found in the vagina, and the injury to the arm demonstrate the use of force on PW1, and disapprove the appellant’s narrative of consensual sexual intercourse in a house and on a bed.
  3. I thus, like the trial Magistrate find that sexual intercourse was without consent.  I will uphold the conviction.
  4. As for the sentence, the trial Magistrate took into account the mitigating factors, and the period the appellant was in custody during trial and sentenced the appellant to 10 years imprisonment.
  5. Rape being a dehumanising and traumatising act, and the circumstances in which this particular incident occurred, and the physical injuries occasioned to the victim, I am of the view that the Magistrate was infact lenient in sentencing.  I will uphold the sentence imposed.
  6. To conclude, I find no merits in the appeal.  I dismiss the appeal and uphold both conviction and sentence.  Right of appeal 14 days explained.

Dated, signed and delivered this 28th day of May 2024 in open court at Voi.

In the presence of:-

Alfred/Trizah – Court Assistants

Appellant in person

Mr. Sirima for State

    Miltone Mghanga Mtoto VS The Republic Miltone Mghanga Mtoto VS The Republic