(Being an appeal from the original matter Sexual Offence Case(MOB) E014 OF 2023 at Tawa SPM’S Court Judgment delivered on 23 rd July, 2024 Before Hon.Jalang’o -SPM)
INTRODUCTION
1. The Appellant was charged before the trial court with the offence of Rape contrary to Section 3(1)(a)(b)(c)(3) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the offence were that on the 4 th day of October,2023 at Kavumbu village in Mbooni West Sub-County within Makueni County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of Catherine Ndunge without her consent by use of force.
3. In the alternative, the Appellant faced the offence of Committing an Indecent Act with an Adult contrary to Section 11(1) of the Sexual Offences Act, the particulars being that on the same date and place, he intentionally and unlawfully caused his penis to penetrate the vagina of Catherine Ndunge without her consent and by using force.
4. The substance of the charge and every essential ingredient thereof was explained to the Appellant, who pleaded not guilty. The matter proceeded to full hearing.
5. At the conclusion of the trial, the learned trial magistrate found that the prosecution had proved the charges of rape beyond reasonable doubt, convicted the Appellant and sentenced him to imprisonment in accordance with the law.
6. Aggrieved by both conviction and sentence, the Appellant filed the present appeal.
B. GROUNDS OF APPEAL
7. The Appellant raises, inter alia, the following grounds:
(i) That the learned trial magistrate erred matters of law and fact by failing to observe that the evidence procured by the prosecution did not have any probative value.
(ii) That the learned trial magistrate erred matters of law and fact by failing to find that the essential increments of the offence were not discharged against the appellant.
(iii) That the learned trial magistrate erred matters of law and fact by failing to find that the whole case was marred by material contradictions and inconstancies which went to the roof of the charges facing him.
(iv) That the learned trial magistrate erred matters of law and fact by failing to find that the legal burden against the appellant was not established due to the weak evidence that was adduced.
(v) That the learned trial magistrate erred matters of law and fact by failing to properly consider the cogent defense case which reasonably exonerated the appellant from the commission of the ill-fated offence.
(vi) That the learned trial magistrate erred matters of law and fact by convicting him while failing to observe and find that he was unrepresented a violation that the trial court took advantage of the commencing a process of trial yet he had no documentary evidence as per Article 25(c).
(vii) That the learned trial magistrate imposed a sentence which is harsh, excessive and not in conformity with the recent jurispendences in Sexual Offences Act No.3 of 2006.
C . SUMMARY OF THE EVIDENCE
(i) The Prosecution Case
8. The prosecution called four witnesses.
9. PW1, Catherine Ndunge Mutuku, testified that on the material day the Appellant forcibly accosted her, overpowered her and had sexual intercourse with her against her will. She resisted and screamed but the Appellant subdued her by use of force.
10. After the ordeal, she waited for the Appellant to sleep and went and reported the matter the police. She was referred to hospital where she underwent medical examination.
11. PW2 corroborated PW1's evidence by confirming that shortly after the incident, PW1 appeared traumatized and informed her that she had been raped by the Appellant. He escorted the compliant for examination and he visited the scene where he recovered a yellow T-Shirt and panty.
12. PW3 was the investigating officer who received the report, recorded witness statements, caused the complainant to be medically examined, arrested the Appellant and preferred the charges.
13. PW4 was the Clinical Officer who examined the complainant. He testified that the complainant was examined at the facility being, Mbooni Sub-County Hospital where the complainant gave a history of being raped by her father-in law.
14. On examination the pregnancy test was negative, the HIV test was negative, hepatisis B was negative but on the uranalysis test they noted spermatozoa and when they did a vaginal swab the found spermatozoa. He completed the P3 Form and PRC Form which were produced in evidence.
15. Upon considering the totality of the evidence, the prosecution closed its case.
(ii) Defence Case
16. The Appellant gave sworn testimony denying the offence.
17. DW2 Caroline Ndungu Musili stated that on the material date they woke up and took breakfast with the accused and went to farm up to 1.00 P.M and in the evening hithe accused was arrested by the Police. Further she stated that the complainant and the accused were not in good terms as the complainant used to collect firewood from his farm without his permission.
18. He denied ever having sexual intercourse with the complainant and urged the trial court to acquit him.
D. LEGAL ANALYSIS
19. This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence afresh and reach its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify.
20. This principle was settled in Okeno v Republic [1972] EA 32 , where the Court of Appeal held that a first appellate court must subject the entire evidence to fresh and exhaustive examination before reaching its own conclusions.
ISSUES FOR DETERMINATION
21. The issues arising for determination are:
i. Whether the prosecution proved the offence of rape beyond reasonable doubt.
ii. Whether the conviction was safe.
iii. Whether this Court should interfere with the sentence.
Whether the prosecution proved the offence beyond reasonable doubt
22. The Appellant has challenged the sufficiency of the prosecution evidence and in particular contended that no scientific evidence connected him to the offence. It is therefore necessary to determine whether the prosecution discharged its burden of proving all the ingredients of the offence beyond reasonable doubt.
Section 3(1) of the Sexual Offences Act provides that:
"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."
23. Accordingly, the prosecution was required to prove:
a. penetration;
b. absence of consent;
c. identity of the perpetrator.
(a) Proof of Penetration
24. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of one person into those of another.
25. PW1 gave a clear and consistent account that the Appellant inserted his penis into her vagina.
26. Her testimony was corroborated by the medical evidence produced by PW4. The Clinical Officer who confirmed injuries to the genital area consistent with forceful penetration. The medical findings significantly corroborated the complainant's testimony.
27. The Court is therefore satisfied that penetration was proved beyond reasonable doubt.
28. The Appellant argued that no DNA analysis was undertaken to connect him with the offence notwithstanding the recovery of spermatozoa from the complainant. That argument is not novel. The Court of Appeal has consistently held that DNA evidence is not an essential ingredient in proving the offence of rape or defilement. In AML v Republic [2012] eKLR, the Court held that:
"The fact of rape or defilement is not proved by way of a DNA test but by way of evidence."
29. Likewise, in Kassim Ali v Republic, Criminal Appeal No. 84 of 2005 , the Court held that absence of medical examination linking the accused to the offence is not decisive since rape may be proved through the oral testimony of the victim supported by surrounding circumstances.
30. Consequently, while DNA evidence would undoubtedly have strengthened the prosecution case, its absence did not render the prosecution evidence insufficient where the complainant's testimony remained credible and was materially corroborated by medical evidence.
(b) Lack of Consent
31. The complainant consistently testified that she did not consent to the sexual act. She explained that the Appellant used force and overpowered her. Her account remained consistent during cross-examination.
32. There was no evidence suggesting that the sexual encounter was consensual. Consequently, the prosecution proved lack of consent.
(c) Identity of the Perpetrator
33. The complainant positively identified the Appellant. She knew him before the incident. This was therefore a case of recognition rather than identification of a stranger.
34. In Anjononi & Others v Republic [1980] KLR 59, the Court of Appeal held that recognition is generally more reliable than identification of a stranger. T
35. The Appellant's principal complaint is that although spermatozoa were recovered from the complainant, the investigating officer did not obtain his blood sample, buccal swab or any other specimen for forensic comparison through DNA analysis.
36. This Court agrees that it would have been prudent for the investigating officer to subject the recovered biological material to DNA analysis. Such evidence would undoubtedly have strengthened the prosecution case.
37. Nevertheless, the law does not make DNA evidence a mandatory ingredient in proving the offence of rape. In many instances, rape is proved through credible victim testimony supported by medical and circumstantial evidence.
38. The Court of Appeal has on numerous occasions held that failure to conduct DNA analysis is not fatal where the evidence on record sufficiently proves the offence beyond reasonable doubt.
39. In the present case, the complainant's evidence remained consistent throughout the trial. It was corroborated by the medical findings which confirmed recent sexual intercourse through the presence of spermatozoa. There was no evidence suggesting consent, and the Appellant's defence amounted to a mere denial.
40. Although the omission to obtain DNA samples from the Appellant constituted an investigative lapse, it did not create reasonable doubt in light of the totality of the evidence presented before the trial court.
41. There was no possibility of mistaken identity. The defence did not challenge the fact that the complainant knew the Appellant prior to the incident. The Court therefore finds that the identity of the perpetrator was proved beyond reasonable doubt.
42. The Court further notes that under the proviso to Section 124 of the Evidence Act, a court may convict on the sole evidence of a complainant in a sexual offence where it records reasons for believing that the complainant is truthful. In the present case, the learned trial magistrate expressly found the complainant to be a truthful witness. Her evidence remained consistent and was in any event corroborated by the medical findings. There was therefore ample evidential basis upon which the trial court reached its conclusion.
43. Although the Appellant submits that no biological samples were taken from him for forensic comparison, that omission did not weaken the otherwise overwhelming evidence against him. The complainant knew the Appellant before the incident. This was therefore a case of recognition, which is more reliable than identification of a stranger. Her evidence remained consistent from the time she reported the offence, throughout the trial and during cross-examination. The medical evidence established recent penetration and the presence of spermatozoa. In those circumstances, the absence of DNA analysis did not create any reasonable doubt.
Whether the defence raised reasonable doubt
44. The Appellant merely denied committing the offence. His defence amounted to a bare denial. It neither displaced nor weakened the prosecution evidence.
45. The learned trial magistrate carefully considered the defence before rejecting it. This Court likewise finds that the defence did not create any reasonable doubt.
Whether the Appellant's right to a fair trial was violated
46. The Appellant contended that he was unrepresented and therefore his right to a fair trial under Article 25(c) of the Constitution was violated.
47. The record does not support that contention. The Constitution guarantees the right to legal representation, but representation at State expense is only mandatory where substantial injustice would otherwise result. The Appellant actively participated throughout the proceedings, cross-examined the prosecution witnesses, gave sworn evidence and called a defence witness. Nothing on the record demonstrates that he was denied a fair opportunity to present his defence or that any prejudice was occasioned merely because he conducted his own defence.
48. The Appellant also alleged that the prosecution evidence was riddled with contradictions and inconsistencies. Having carefully reviewed the entire record, this Court finds that any discrepancies were minor and related only to peripheral matters which did not affect the substance of the prosecution case.
49. The evidence concerning penetration, absence of consent and identity remained consistent throughout. Such minor inconsistencies are natural in truthful testimony and do not render the prosecution case unreliable. This ground therefore fails.
Whether the conviction was safe
50. Upon independently re-evaluating the evidence, this Court is satisfied that:
i. penetration was proved;
ii. lack of consent was proved;
iii. the Appellant was positively identified as the perpetrator.
51. The prosecution therefore discharged the burden placed upon it beyond reasonable doubt. Consequently, the conviction was safe.
Whether this Court should interfere with sentence
52. Sentencing lies within the discretion of the trial court. An appellate court only interferes where it is shown that the trial court considered irrelevant matters, ignored relevant considerations, applied wrong principles, or imposed a manifestly excessive or illegal sentence.
53. This principle was reiterated in Bernard Kimani Gacheru v Republic [2002] eKLR and Shadrack Kipkoech Kogo v Republic Eldoret Criminal Appeal No. 253 of 2003.
54. Sentencing remains a matter within the discretion of the trial court, although that discretion must be exercised judicially.
55. An appellate court may interfere where the sentence is illegal, manifestly excessive, or where the trial court failed to consider relevant mitigating circumstances.
56. The offence of rape is one of the gravest violations of bodily autonomy and human dignity. The trial court considered the mitigation tendered by the Appellant before imposing sentence.
57. Under Section 3(3) of the Sexual Offences Act, a person convicted of rape is liable to imprisonment for a term of not less than ten years, which sentence may be enhanced to imprisonment for life.
58. The Appellant was sentenced to fifteen (15) years' imprisonment. Considering the violent circumstances under which the offence was committed, the abuse of trust between the parties, and the serious psychological and physical harm suffered by the complainant, the sentence cannot be said to be excessive or manifestly harsh.
59. This Court finds no error in principle, no misdirection and no improper exercise of discretion by the learned trial magistrate. There is therefore no legal basis upon which this Court can interfere with the sentence.
60. In computing the sentence, the prison authorities shall comply with Section 333(2) of the Criminal Procedure Code by taking into account the period spent by the Appellant in lawful custody before conviction. The offence committed was grave.
E. CONCLUSION & DISPOSITION
61. Having independently reconsidered and re-evaluated all the evidence on record, this Court is satisfied that the prosecution proved beyond reasonable doubt each of the essential ingredients of the offence of rape contrary to Section 3(1)(a), (b), (c) as read with Section 3(3) of the Sexual Offences Act.
62. The complainant's testimony was truthful, consistent and materially corroborated by the medical evidence. The Appellant's defence amounted to a mere denial and did not raise any reasonable doubt. The alleged investigative omissions, including the absence of DNA analysis, did not weaken the otherwise cogent evidence establishing the Appellant's guilt.
63. The Court further finds that the Appellant received a fair trial. The proceedings disclose no violation of Article 25(c) of the Constitution or any miscarriage of justice. Likewise, the alleged contradictions in the prosecution evidence were minor and did not go to the root of the case.
64. Regarding sentence, the learned trial magistrate properly exercised judicial discretion. The sentence of fifteen (15) years' imprisonment falls within the statutory limits prescribed under Section 3(3) of the Sexual Offences Act and is neither harsh nor excessive in the circumstances of this case.
65. Accordingly:
(a) The appeal against conviction is dismissed.
(b) The conviction for the offence of rape contrary to Section 3(1)(a), (b), (c) as read with Section 3(3) of the Sexual Offences Act is hereby affirmed.
(c) The appeal against sentence is dismissed.
(d) The sentence of fifteen (15) years' imprisonment imposed by the trial court is hereby upheld.
(e) The sentence shall continue to run from the date ordered by the trial court, subject to compliance with Section 333(2) of the Criminal Procedure Code where applicable.
It is so ordered.
Dated and delivered at Malindi this 28 th day of July 2026
C.AKAIGWA
JUDGE
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INTRODUCTION
1. The Appellant was charged before the trial court with the offence of Rape contrary to Section 3(1)(a)(b)(c)(3) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the offence were that on the 4 th day of October,2023 at Kavumbu village in Mbooni West Sub-County within Makueni County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of Catherine Ndunge without her consent by use of force.
3. In the alternative, the Appellant faced the offence of Committing an Indecent Act with an Adult contrary to Section 11(1) of the Sexual Offences Act, the particulars being that on the same date and place, he intentionally and unlawfully caused his penis to penetrate the vagina of Catherine Ndunge without her consent and by using force.
4. The substance of the charge and every essential ingredient thereof was explained to the Appellant, who pleaded not guilty. The matter proceeded to full hearing.
5. At the conclusion of the trial, the learned trial magistrate found that the prosecution had proved the charges of rape beyond reasonable doubt, convicted the Appellant and sentenced him to imprisonment in accordance with the law.
6. Aggrieved by both conviction and sentence, the Appellant filed the present appeal.
B. GROUNDS OF APPEAL
7. The Appellant raises, inter alia, the following grounds:
(i) That the learned trial magistrate erred matters of law and fact by failing to observe that the evidence procured by the prosecution did not have any probative value.
(ii) That the learned trial magistrate erred matters of law and fact by failing to find that the essential increments of the offence were not discharged against the appellant.
(iii) That the learned trial magistrate erred matters of law and fact by failing to find that the whole case was marred by material contradictions and inconstancies which went to the roof of the charges facing him.
(iv) That the learned trial magistrate erred matters of law and fact by failing to find that the legal burden against the appellant was not established due to the weak evidence that was adduced.
(v) That the learned trial magistrate erred matters of law and fact by failing to properly consider the cogent defense case which reasonably exonerated the appellant from the commission of the ill-fated offence.
(vi) That the learned trial magistrate erred matters of law and fact by convicting him while failing to observe and find that he was unrepresented a violation that the trial court took advantage of the commencing a process of trial yet he had no documentary evidence as per Article 25(c).
(vii) That the learned trial magistrate imposed a sentence which is harsh, excessive and not in conformity with the recent jurispendences in Sexual Offences Act No.3 of 2006.
C . SUMMARY OF THE EVIDENCE
(i) The Prosecution Case
8. The prosecution called four witnesses.
9. PW1, Catherine Ndunge Mutuku, testified that on the material day the Appellant forcibly accosted her, overpowered her and had sexual intercourse with her against her will. She resisted and screamed but the Appellant subdued her by use of force.
10. After the ordeal, she waited for the Appellant to sleep and went and reported the matter the police. She was referred to hospital where she underwent medical examination.
11. PW2 corroborated PW1's evidence by confirming that shortly after the incident, PW1 appeared traumatized and informed her that she had been raped by the Appellant. He escorted the compliant for examination and he visited the scene where he recovered a yellow T-Shirt and panty.
12. PW3 was the investigating officer who received the report, recorded witness statements, caused the complainant to be medically examined, arrested the Appellant and preferred the charges.
13. PW4 was the Clinical Officer who examined the complainant. He testified that the complainant was examined at the facility being, Mbooni Sub-County Hospital where the complainant gave a history of being raped by her father-in law.
14. On examination the pregnancy test was negative, the HIV test was negative, hepatisis B was negative but on the uranalysis test they noted spermatozoa and when they did a vaginal swab the found spermatozoa. He completed the P3 Form and PRC Form which were produced in evidence.
15. Upon considering the totality of the evidence, the prosecution closed its case.
(ii) Defence Case
16. The Appellant gave sworn testimony denying the offence.
17. DW2 Caroline Ndungu Musili stated that on the material date they woke up and took breakfast with the accused and went to farm up to 1.00 P.M and in the evening hithe accused was arrested by the Police. Further she stated that the complainant and the accused were not in good terms as the complainant used to collect firewood from his farm without his permission.
18. He denied ever having sexual intercourse with the complainant and urged the trial court to acquit him.
D. LEGAL ANALYSIS
19. This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence afresh and reach its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify.
20. This principle was settled in Okeno v Republic [1972] EA 32 , where the Court of Appeal held that a first appellate court must subject the entire evidence to fresh and exhaustive examination before reaching its own conclusions.
ISSUES FOR DETERMINATION
21. The issues arising for determination are:
i. Whether the prosecution proved the offence of rape beyond reasonable doubt.
ii. Whether the conviction was safe.
iii. Whether this Court should interfere with the sentence.
Whether the prosecution proved the offence beyond reasonable doubt
22. The Appellant has challenged the sufficiency of the prosecution evidence and in particular contended that no scientific evidence connected him to the offence. It is therefore necessary to determine whether the prosecution discharged its burden of proving all the ingredients of the offence beyond reasonable doubt.
Section 3(1) of the Sexual Offences Act provides that:
"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."
23. Accordingly, the prosecution was required to prove:
a. penetration;
b. absence of consent;
c. identity of the perpetrator.
(a) Proof of Penetration
24. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of one person into those of another.
25. PW1 gave a clear and consistent account that the Appellant inserted his penis into her vagina.
26. Her testimony was corroborated by the medical evidence produced by PW4. The Clinical Officer who confirmed injuries to the genital area consistent with forceful penetration. The medical findings significantly corroborated the complainant's testimony.
27. The Court is therefore satisfied that penetration was proved beyond reasonable doubt.
28. The Appellant argued that no DNA analysis was undertaken to connect him with the offence notwithstanding the recovery of spermatozoa from the complainant. That argument is not novel. The Court of Appeal has consistently held that DNA evidence is not an essential ingredient in proving the offence of rape or defilement. In AML v Republic [2012] eKLR, the Court held that:
"The fact of rape or defilement is not proved by way of a DNA test but by way of evidence."
29. Likewise, in Kassim Ali v Republic, Criminal Appeal No. 84 of 2005 , the Court held that absence of medical examination linking the accused to the offence is not decisive since rape may be proved through the oral testimony of the victim supported by surrounding circumstances.
30. Consequently, while DNA evidence would undoubtedly have strengthened the prosecution case, its absence did not render the prosecution evidence insufficient where the complainant's testimony remained credible and was materially corroborated by medical evidence.
(b) Lack of Consent
31. The complainant consistently testified that she did not consent to the sexual act. She explained that the Appellant used force and overpowered her. Her account remained consistent during cross-examination.
32. There was no evidence suggesting that the sexual encounter was consensual. Consequently, the prosecution proved lack of consent.
(c) Identity of the Perpetrator
33. The complainant positively identified the Appellant. She knew him before the incident. This was therefore a case of recognition rather than identification of a stranger.
34. In Anjononi & Others v Republic [1980] KLR 59, the Court of Appeal held that recognition is generally more reliable than identification of a stranger. T
35. The Appellant's principal complaint is that although spermatozoa were recovered from the complainant, the investigating officer did not obtain his blood sample, buccal swab or any other specimen for forensic comparison through DNA analysis.
36. This Court agrees that it would have been prudent for the investigating officer to subject the recovered biological material to DNA analysis. Such evidence would undoubtedly have strengthened the prosecution case.
37. Nevertheless, the law does not make DNA evidence a mandatory ingredient in proving the offence of rape. In many instances, rape is proved through credible victim testimony supported by medical and circumstantial evidence.
38. The Court of Appeal has on numerous occasions held that failure to conduct DNA analysis is not fatal where the evidence on record sufficiently proves the offence beyond reasonable doubt.
39. In the present case, the complainant's evidence remained consistent throughout the trial. It was corroborated by the medical findings which confirmed recent sexual intercourse through the presence of spermatozoa. There was no evidence suggesting consent, and the Appellant's defence amounted to a mere denial.
40. Although the omission to obtain DNA samples from the Appellant constituted an investigative lapse, it did not create reasonable doubt in light of the totality of the evidence presented before the trial court.
41. There was no possibility of mistaken identity. The defence did not challenge the fact that the complainant knew the Appellant prior to the incident. The Court therefore finds that the identity of the perpetrator was proved beyond reasonable doubt.
42. The Court further notes that under the proviso to Section 124 of the Evidence Act, a court may convict on the sole evidence of a complainant in a sexual offence where it records reasons for believing that the complainant is truthful. In the present case, the learned trial magistrate expressly found the complainant to be a truthful witness. Her evidence remained consistent and was in any event corroborated by the medical findings. There was therefore ample evidential basis upon which the trial court reached its conclusion.
43. Although the Appellant submits that no biological samples were taken from him for forensic comparison, that omission did not weaken the otherwise overwhelming evidence against him. The complainant knew the Appellant before the incident. This was therefore a case of recognition, which is more reliable than identification of a stranger. Her evidence remained consistent from the time she reported the offence, throughout the trial and during cross-examination. The medical evidence established recent penetration and the presence of spermatozoa. In those circumstances, the absence of DNA analysis did not create any reasonable doubt.
Whether the defence raised reasonable doubt
44. The Appellant merely denied committing the offence. His defence amounted to a bare denial. It neither displaced nor weakened the prosecution evidence.
45. The learned trial magistrate carefully considered the defence before rejecting it. This Court likewise finds that the defence did not create any reasonable doubt.
Whether the Appellant's right to a fair trial was violated
46. The Appellant contended that he was unrepresented and therefore his right to a fair trial under Article 25(c) of the Constitution was violated.
47. The record does not support that contention. The Constitution guarantees the right to legal representation, but representation at State expense is only mandatory where substantial injustice would otherwise result. The Appellant actively participated throughout the proceedings, cross-examined the prosecution witnesses, gave sworn evidence and called a defence witness. Nothing on the record demonstrates that he was denied a fair opportunity to present his defence or that any prejudice was occasioned merely because he conducted his own defence.
48. The Appellant also alleged that the prosecution evidence was riddled with contradictions and inconsistencies. Having carefully reviewed the entire record, this Court finds that any discrepancies were minor and related only to peripheral matters which did not affect the substance of the prosecution case.
49. The evidence concerning penetration, absence of consent and identity remained consistent throughout. Such minor inconsistencies are natural in truthful testimony and do not render the prosecution case unreliable. This ground therefore fails.
Whether the conviction was safe
50. Upon independently re-evaluating the evidence, this Court is satisfied that:
i. penetration was proved;
ii. lack of consent was proved;
iii. the Appellant was positively identified as the perpetrator.
51. The prosecution therefore discharged the burden placed upon it beyond reasonable doubt. Consequently, the conviction was safe.
Whether this Court should interfere with sentence
52. Sentencing lies within the discretion of the trial court. An appellate court only interferes where it is shown that the trial court considered irrelevant matters, ignored relevant considerations, applied wrong principles, or imposed a manifestly excessive or illegal sentence.
53. This principle was reiterated in Bernard Kimani Gacheru v Republic [2002] eKLR and Shadrack Kipkoech Kogo v Republic Eldoret Criminal Appeal No. 253 of 2003.
54. Sentencing remains a matter within the discretion of the trial court, although that discretion must be exercised judicially.
55. An appellate court may interfere where the sentence is illegal, manifestly excessive, or where the trial court failed to consider relevant mitigating circumstances.
56. The offence of rape is one of the gravest violations of bodily autonomy and human dignity. The trial court considered the mitigation tendered by the Appellant before imposing sentence.
57. Under Section 3(3) of the Sexual Offences Act, a person convicted of rape is liable to imprisonment for a term of not less than ten years, which sentence may be enhanced to imprisonment for life.
58. The Appellant was sentenced to fifteen (15) years' imprisonment. Considering the violent circumstances under which the offence was committed, the abuse of trust between the parties, and the serious psychological and physical harm suffered by the complainant, the sentence cannot be said to be excessive or manifestly harsh.
59. This Court finds no error in principle, no misdirection and no improper exercise of discretion by the learned trial magistrate. There is therefore no legal basis upon which this Court can interfere with the sentence.
60. In computing the sentence, the prison authorities shall comply with Section 333(2) of the Criminal Procedure Code by taking into account the period spent by the Appellant in lawful custody before conviction. The offence committed was grave.
E. CONCLUSION & DISPOSITION
61. Having independently reconsidered and re-evaluated all the evidence on record, this Court is satisfied that the prosecution proved beyond reasonable doubt each of the essential ingredients of the offence of rape contrary to Section 3(1)(a), (b), (c) as read with Section 3(3) of the Sexual Offences Act.
62. The complainant's testimony was truthful, consistent and materially corroborated by the medical evidence. The Appellant's defence amounted to a mere denial and did not raise any reasonable doubt. The alleged investigative omissions, including the absence of DNA analysis, did not weaken the otherwise cogent evidence establishing the Appellant's guilt.
63. The Court further finds that the Appellant received a fair trial. The proceedings disclose no violation of Article 25(c) of the Constitution or any miscarriage of justice. Likewise, the alleged contradictions in the prosecution evidence were minor and did not go to the root of the case.
64. Regarding sentence, the learned trial magistrate properly exercised judicial discretion. The sentence of fifteen (15) years' imprisonment falls within the statutory limits prescribed under Section 3(3) of the Sexual Offences Act and is neither harsh nor excessive in the circumstances of this case.
65. Accordingly:
(a) The appeal against conviction is dismissed.
(b) The conviction for the offence of rape contrary to Section 3(1)(a), (b), (c) as read with Section 3(3) of the Sexual Offences Act is hereby affirmed.
(c) The appeal against sentence is dismissed.
(d) The sentence of fifteen (15) years' imprisonment imposed by the trial court is hereby upheld.
(e) The sentence shall continue to run from the date ordered by the trial court, subject to compliance with Section 333(2) of the Criminal Procedure Code where applicable.
It is so ordered.
Dated and delivered at Malindi this 28 th day of July 2026
C.AKAIGWA
JUDGE
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