1. The Appellant was charged with two counts in Criminal Case No E296 Of 2023. In Count 1 he was charged with the offence of was causing grievous harm contrary to section 234 of the Penal Code. The particulars of the offence were that on the 18th day of April 2023 at Rurii village, in Mirira location within Murang'a County, the appellant herein caused grievous harm to Gladys Wanjiru Kihoro.In Count 2 he was charged with the offence of rape contrary to Section 3(1)(a)(c)(3) of Sexual Offences Act No. 3 of 2026 in Criminal Case No E296 Of 2023.The particulars were that the appellant on the 18th day of April 2023 at Rurii village, in Mirira location within Murang'a County intentionally and unlawfully caused his penis to penetrate the vigina of Gladys Wanjiru Kihoro by use of force and threats.
2. The appellant entered a plea of not guilty after which the prosecution lead evidence of a total no of Eight (8) witness to prove its case. The appellant was put in his defence where he gave sworn testimony. He did not call any witnesses. After completion of trial the appellant was convicted and sentenced to count one 25 years imprisonment and for count 2, 10 years imprisonment to run concurrently. Having been dissatisfied with the finding and sentence, he has lodged the instant appeal.
3. He argues that the trial court fell into error in convicting him notwithstanding the fact that the prosecution case had a host of inconsistencies and contradictions.
4. He further argues that the prosecution did not prove the charge.
5. The appellant is also dissatisfied with the sentencing which is according to him severe.
6. He prays for the conviction to be quashed, sentence set aside and the appellant set at liberty.
7. On the issue of Inconsistencies, he submits that, the evidence tendered in court in respect to this case was full of inconsistencies and contradictions. These inconsistencies and contradictions went to the root of the prosecution case and the appellant herein was prejudiced as the truth never came out clearly.
8. He submits that PW 1 stated in her chief evidence and cross examination that she decided to sleep in her children's bedroom because she feared that her husband had planned something.
9. On the other hand, PW2 stated that she had slept alone on that night.The complainant did not expound to the honorable court why she suspected her husband and knew that he was up to something. The only inference this court could deduce from that is that the complainant hid something that would have implicated her in this case.
10. In Joseph Maina Mwangi versus RepubZic Criminal Appeal No. 73 of 1993, it was held, inter alia, that: -
'In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies, must be guided by the wording of section 382 of the criminal procedure code viz whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentences.'
11. The Court of Appeal decision in Erick Onpango Odeng' v. Republic [2014] eKLR citing with approval the Uganda Court of Appeal case of Twehangane Alfred v. Uganda Criminal Appeal No. 139 of2001, [2003] UGCA, 6 it was held as follows:
‘With regard to contradictions in the prosecution _'s case the Law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution case.'
12. He submits that, the contradictions and inconsistencies went to the root of the prosecution case.The trial court ignored the inconsistencies and proceeded to convict the appellant despite the glaring inconsistencies in the prosecution case.
13. The second issue the appellant herein submits before this honorable court is the charge of grievous harm contrary to Section 234 of the Penal Code.
14. The said Section defines the injury that is grievous harm as,
"Grievous harm means any harm which amounts to maim or dangerous harm or seriously and permanently injures health, or which is likely so to injure health, or which extends to the permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense."
15. Therefore, the specificities of "grievous harm" are:-
"In the case of grievous harm, the injury to health must be permanent or likely to be permanent, whereas, to amount to bodily harm, the injury to health need not be permanent; a mental injury may amount to grievous harm but not to bodily harm; the injury must be "of such a nature as to cause or be likely to cause" permanent injury to health."
16. He submits that the complainant testified that she was assaulted and cut with a panga that is used to cut grass for cows.
17. The doctor testified that she treated the patient and he formed the opinion that the degree of injuries was main.
18. The appellant was also charge with the offence of rape contrary to Section (3) of the Sexual Offences Act no. 3 of 2006.
19. He submits that the evidence tendered before the trial court was not sufficient to prove the charge of grievous harm.
20. Section 124 of the Evidence Act that states,
"Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth."
21. The evidence adduced was that of the complainant. She testified that the accused person raped her after cutting her with a panga and she was bleeding. The accused person in his defence told the honorable court that he found his wife with another man at night making out and in that scenario the person who was with the wife fled and the wife ran into the house.
22. He submits that two people therefore were liable to have had sex with the complainant. First is the person the husband said found her making out with or the husband whom the complainant claims to have committed the offence.
23. According to him,the integrity of the complainant could not be trusted. She told court that the appellant was up to something when there was nothing to show that the appellant herein had any intentions of attacking her that night. She told court that she had gone to sleep with the kids when her own kid testified that she had slept alone that night. What was so special in this that she could frame the accused person to have raped her in order to cover her ordeals with her 'mpango wa kando',he remarked.
24. He submits that the trial court erred in believing the testimony of the complainant herein and he implores this court to find the him innocent.
25. The final ground that the appellant advances is around the question of sentencing.
26. The appellant herein was convicted to 25 years imprisonment in first count of grievous harm and 10 years imprisonment in the second of rape.
27. The learned magistrate ordered that the sentences should run consecutively. He submits that this was an error as the law says contrary.
28. The appellant herein is serving 35 years as it stands which is harsh. The appellant herein expressed his remorsefulness after conviction. He extended his hand for reconciliation to the complainant but unfortunately the complainant denied to reconcile with the accused person. Secondly, the complainant was his wife and the circumstances surrounding the offence was that the accused person was provoked into committing the offence of assaulting his wife after finding his wife red-handed with another man. He implores this court to find this as mitigating circumstance and in the premises that the appeal against conviction fails.
29. He submits that the court should reduce the sentence based on his remorsefulness and the circumstances that prompted the accused to assault his wife.
30. On the second part on the issue of the sentence, he submits that the order by the learned trial magistrate that the sentence of 25 years and 10 years should run consecutively was an error in law.
31. The offence of grievous harm and rape emanated from the same transaction. It happened on the same day, time and also by the same person to the same person.
32. Section 14 of the Criminal Procedure Code provides as follows: -
Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefore which the court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently.
33. In Peter Mbugua Kabui -vs- Republic [20161 eKLR the Court of Appeal stated as follows:
"As a general principle, the practice is that if an accused person commits a series of offences at the same time in a single act/transaction a concurrent sentence should be given. However, if separate and distinct offences are committed in different criminal transactions, even though the counts may be in one charge sheet and one trial, it is not illegal to mete out a consecutive term of imprisonment. "
34. The Court of Appeal has defined the phrase 'same transaction rule' in the case of Republic -vs- Saidi Nsabuga S/O Juma & Another [19411 EACA and revisited it again in Nathan -vs- Republic [19651 EA 777 where the court stated as follows: -
"If a series of acts are so connected together by proximity of time, criminality or criminal intent, continuity of action and purpose, or by relation of cause and effect as to constitute one transaction, then the offences constituted by these series of acts are committed in the course of the same transaction.
35. In scholarly text on principles of sentencing D.A. THOMAS (HAREMANN 2ND EDITION [1979] pg 53 articulated the rationale of one transaction rule as follows:
"The essence of one — transaction rule appears to be that consecutive sentences are in appropriate when all the offences taken together constitute a single invasion of the same legally protected interest. The principle applies where two or more offences arise from the same facts but the fact that the two offences are connected simultaneously or close together in time does not necessarily mean that they amount to a single transaction." (See Muthangya Mutembei v Republic [2019] eKLR).
36. Also, case law has also dealt with this subject. It was stated in the case of Peter Maaeria v Republic [19831 eKLR:
"It has been said many times that where different offences form part of one transaction and are committed at the same time — as was the case here — then the sentences should be made to run concurrently unless there are exceptional circumstances for not doing so.
The Respondent's case
37. To secure a conviction under the offence of grievous harm the prosecution had to prove the following:
1) The victim sustained grievous harm.
2) That the harm was caused unlawfully.
3) That the accused caused or participated in causing the grievous harm.
38. Section 4 of the Penal code defines grievous harm to mean any harm which amounts to maim or dangerous harm or seriously and permanently injures health, or which is likely to injure health or which extends to the permanent disfigurement or to any permanent or serious injury to any external or internal organ membrane or serve.
39. It submits that PW1 proved that on 18th April, 2023 the appellant assaulted her and also used a panga to cut her on different places including both her hands. She sustained a fracture of the left hand, and suffered injuries to her wrist, shoulder, head, back, thighs and legs.
40. According to the prosecution,Pw8 a clinical officer testified that on examination the victim complained of generalized body pains and multiple cut wounds. He confirmed that the victim had a deep cut wound on the occipital region, deep cut wound on the back, she had fractures of the left radical bone and multiple cut wounds on both legs. He produced a P3 confirming the said injuries.
41. According to the prosecution, the conviction and the sentence are legal.
Analysis and Determination
42. This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the Court of Appeal stated:-
“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.
43. The appellant contended that the prosecution evidence was riddled with material contradictions and inconsistencies capable of rendering the conviction unsafe.
44. The Uganda Court of Appeal in Twehangane Alfred vs Uganda held that it is not every contradiction that warrants rejection of evidence. As the court put it:-
"With regard to contradictions in the prosecution's case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution's case. (emphasis mine).
45. The applicable principle is that not every discrepancy or inconsistency in the testimony of witnesses is fatal to the prosecution case. The material question is whether the contradiction is substantial and goes to the root of the prosecution case.
46. In Philip Nzaka Watu v Republic [2016] eKLR, the Court of Appeal recognized that minor discrepancies are not uncommon in the testimony of truthful witnesses and that it is only material contradictions affecting the substance of the prosecution case that may render a conviction unsafe.
47. Having independently reviewed the evidence, I find that the alleged inconsistencies have no impact on the prosecution case that is weighty enough as to justify the setting aside of the conviction and the sentence.
48. The victim did not contradict the evidence that sexual intercourse occurred. The identification of the appellant as the person with whom she had sexual intercourse was not in doubt.
49. I therefore find that no material contradiction capable of unsettling the conviction was demonstrated.
50. The court will now address its mind to the issue whether there was sufficient evidence to prove that the assault occasioned on PW 1 resulted in grievous bodily harm within the meaning of Section 4 of the Penal Code.
51. In answering the question as to whether the prosecution failed to show the court that truly the appellant herein did commit the act of rape as the court has looked at the definition of rape.
52. The appellant also submitted that the learned trial magistrate erred in meting out the sentence of 25 years and 10 years to run consecutively contrary to the error in law.
53. The court takes note of the fact that the offence of grievous harm and rape happened on the same day, time as executed by the same person against the same person. The foregoing flow from the same platform.
54. Section 14 of the Criminal Procedure Code provides thus:
“(1) Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefor which the court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently.
55. In the case of consecutive sentences, it shall not be necessary for the court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to impose on conviction of a single offence, to send the offender for trial before a higher court.
56. Except in cases to which Section 7(1) of the Criminal Procedure Code applies.Nothing in this section shall authorize a subordinate court to pass, on any person at one trial, consecutive sentences—
i. Of imprisonment which amount in the aggregate to more than fourteen years, or twice the amount of imprisonment which the court, in the exercise of its ordinary jurisdiction, is competent to impose, whichever is the less; or
ii. Of fines which amount in the aggregate to more than twice the amount which the court is so competent to impose.
57. For the purposes of appeal, the aggregate of consecutive sentences imposed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence.”
58. In the case of Peter Mbugua Kabui vs. Republic (2016) eKLR the Court of Appeal stated thus:
“As a general principle, the practice is that if an accused person commits a series of offences at the same time in a single act/transaction a concurrent sentence should be given. However, if separate and distinct offences are committed in different criminal transactions, even though the counts may be in one charge sheet and one trial, it is not illegal to mete out a consecutive term of imprisonment. It is our considered view that the exception in Section 14 (3) of the Criminal Procedure Code is inapplicable to this case in light of the provisions of Section 7 (1) of the Criminal Procedure Code. We further observe that Section 14 of the Criminal Procedure Code stipulates that for purposes of an appeal, the aggregate of consecutive sentences imposed in case of convictions for several offences at one trial, shall be deemed to be a single sentence. We take the view that given the circumstances of this case, the consecutive sentences totaling 20 years imposed on the appellant, cannot said to be excessive. In any event, as we have pointed out earlier, severity of sentence is a question of fact and this Court has no jurisdiction to consider issues of fact in a second appeal. Is the sentence illegal or unlawful" We find that the sentence was legal and lawful, and we have no legal basis for interfering with the same.”
59. Given that the acts committed by the Appellant amounted to two distinct crimes took place at the same time this court is of the view that the appellant should serve the sentences concurrently and I hold.
Determination on Conviction
60. Having independently reconsidered and re-evaluated the entire evidence as required of a first appellate court, I am satisfied that the prosecution proved beyond reasonable doubt. However there is an issue around the sentencing which this court hereby disturbs in line with orders below.
Order;
1) The conviction is upheld.
2) The sentence is set aside and replaced with an order that the appellant shall serve the two sentences concurrently running from the date he was sentenced by the trial court.
Dated, Signed and Delivered Virtually at Eldoret this 30th day of July, 2026
2. The appellant entered a plea of not guilty after which the prosecution lead evidence of a total no of Eight (8) witness to prove its case. The appellant was put in his defence where he gave sworn testimony. He did not call any witnesses. After completion of trial the appellant was convicted and sentenced to count one 25 years imprisonment and for count 2, 10 years imprisonment to run concurrently. Having been dissatisfied with the finding and sentence, he has lodged the instant appeal.
3. He argues that the trial court fell into error in convicting him notwithstanding the fact that the prosecution case had a host of inconsistencies and contradictions.
4. He further argues that the prosecution did not prove the charge.
5. The appellant is also dissatisfied with the sentencing which is according to him severe.
6. He prays for the conviction to be quashed, sentence set aside and the appellant set at liberty.
7. On the issue of Inconsistencies, he submits that, the evidence tendered in court in respect to this case was full of inconsistencies and contradictions. These inconsistencies and contradictions went to the root of the prosecution case and the appellant herein was prejudiced as the truth never came out clearly.
8. He submits that PW 1 stated in her chief evidence and cross examination that she decided to sleep in her children's bedroom because she feared that her husband had planned something.
9. On the other hand, PW2 stated that she had slept alone on that night.The complainant did not expound to the honorable court why she suspected her husband and knew that he was up to something. The only inference this court could deduce from that is that the complainant hid something that would have implicated her in this case.
10. In Joseph Maina Mwangi versus RepubZic Criminal Appeal No. 73 of 1993, it was held, inter alia, that: -
'In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies, must be guided by the wording of section 382 of the criminal procedure code viz whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentences.'
11. The Court of Appeal decision in Erick Onpango Odeng' v. Republic [2014] eKLR citing with approval the Uganda Court of Appeal case of Twehangane Alfred v. Uganda Criminal Appeal No. 139 of2001, [2003] UGCA, 6 it was held as follows:
‘With regard to contradictions in the prosecution _'s case the Law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution case.'
12. He submits that, the contradictions and inconsistencies went to the root of the prosecution case.The trial court ignored the inconsistencies and proceeded to convict the appellant despite the glaring inconsistencies in the prosecution case.
13. The second issue the appellant herein submits before this honorable court is the charge of grievous harm contrary to Section 234 of the Penal Code.
14. The said Section defines the injury that is grievous harm as,
"Grievous harm means any harm which amounts to maim or dangerous harm or seriously and permanently injures health, or which is likely so to injure health, or which extends to the permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense."
15. Therefore, the specificities of "grievous harm" are:-
"In the case of grievous harm, the injury to health must be permanent or likely to be permanent, whereas, to amount to bodily harm, the injury to health need not be permanent; a mental injury may amount to grievous harm but not to bodily harm; the injury must be "of such a nature as to cause or be likely to cause" permanent injury to health."
16. He submits that the complainant testified that she was assaulted and cut with a panga that is used to cut grass for cows.
17. The doctor testified that she treated the patient and he formed the opinion that the degree of injuries was main.
18. The appellant was also charge with the offence of rape contrary to Section (3) of the Sexual Offences Act no. 3 of 2006.
19. He submits that the evidence tendered before the trial court was not sufficient to prove the charge of grievous harm.
20. Section 124 of the Evidence Act that states,
"Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth."
21. The evidence adduced was that of the complainant. She testified that the accused person raped her after cutting her with a panga and she was bleeding. The accused person in his defence told the honorable court that he found his wife with another man at night making out and in that scenario the person who was with the wife fled and the wife ran into the house.
22. He submits that two people therefore were liable to have had sex with the complainant. First is the person the husband said found her making out with or the husband whom the complainant claims to have committed the offence.
23. According to him,the integrity of the complainant could not be trusted. She told court that the appellant was up to something when there was nothing to show that the appellant herein had any intentions of attacking her that night. She told court that she had gone to sleep with the kids when her own kid testified that she had slept alone that night. What was so special in this that she could frame the accused person to have raped her in order to cover her ordeals with her 'mpango wa kando',he remarked.
24. He submits that the trial court erred in believing the testimony of the complainant herein and he implores this court to find the him innocent.
25. The final ground that the appellant advances is around the question of sentencing.
26. The appellant herein was convicted to 25 years imprisonment in first count of grievous harm and 10 years imprisonment in the second of rape.
27. The learned magistrate ordered that the sentences should run consecutively. He submits that this was an error as the law says contrary.
28. The appellant herein is serving 35 years as it stands which is harsh. The appellant herein expressed his remorsefulness after conviction. He extended his hand for reconciliation to the complainant but unfortunately the complainant denied to reconcile with the accused person. Secondly, the complainant was his wife and the circumstances surrounding the offence was that the accused person was provoked into committing the offence of assaulting his wife after finding his wife red-handed with another man. He implores this court to find this as mitigating circumstance and in the premises that the appeal against conviction fails.
29. He submits that the court should reduce the sentence based on his remorsefulness and the circumstances that prompted the accused to assault his wife.
30. On the second part on the issue of the sentence, he submits that the order by the learned trial magistrate that the sentence of 25 years and 10 years should run consecutively was an error in law.
31. The offence of grievous harm and rape emanated from the same transaction. It happened on the same day, time and also by the same person to the same person.
32. Section 14 of the Criminal Procedure Code provides as follows: -
Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefore which the court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently.
33. In Peter Mbugua Kabui -vs- Republic [20161 eKLR the Court of Appeal stated as follows:
"As a general principle, the practice is that if an accused person commits a series of offences at the same time in a single act/transaction a concurrent sentence should be given. However, if separate and distinct offences are committed in different criminal transactions, even though the counts may be in one charge sheet and one trial, it is not illegal to mete out a consecutive term of imprisonment. "
34. The Court of Appeal has defined the phrase 'same transaction rule' in the case of Republic -vs- Saidi Nsabuga S/O Juma & Another [19411 EACA and revisited it again in Nathan -vs- Republic [19651 EA 777 where the court stated as follows: -
"If a series of acts are so connected together by proximity of time, criminality or criminal intent, continuity of action and purpose, or by relation of cause and effect as to constitute one transaction, then the offences constituted by these series of acts are committed in the course of the same transaction.
35. In scholarly text on principles of sentencing D.A. THOMAS (HAREMANN 2ND EDITION [1979] pg 53 articulated the rationale of one transaction rule as follows:
"The essence of one — transaction rule appears to be that consecutive sentences are in appropriate when all the offences taken together constitute a single invasion of the same legally protected interest. The principle applies where two or more offences arise from the same facts but the fact that the two offences are connected simultaneously or close together in time does not necessarily mean that they amount to a single transaction." (See Muthangya Mutembei v Republic [2019] eKLR).
36. Also, case law has also dealt with this subject. It was stated in the case of Peter Maaeria v Republic [19831 eKLR:
"It has been said many times that where different offences form part of one transaction and are committed at the same time — as was the case here — then the sentences should be made to run concurrently unless there are exceptional circumstances for not doing so.
The Respondent's case
37. To secure a conviction under the offence of grievous harm the prosecution had to prove the following:
1) The victim sustained grievous harm.
2) That the harm was caused unlawfully.
3) That the accused caused or participated in causing the grievous harm.
38. Section 4 of the Penal code defines grievous harm to mean any harm which amounts to maim or dangerous harm or seriously and permanently injures health, or which is likely to injure health or which extends to the permanent disfigurement or to any permanent or serious injury to any external or internal organ membrane or serve.
39. It submits that PW1 proved that on 18th April, 2023 the appellant assaulted her and also used a panga to cut her on different places including both her hands. She sustained a fracture of the left hand, and suffered injuries to her wrist, shoulder, head, back, thighs and legs.
40. According to the prosecution,Pw8 a clinical officer testified that on examination the victim complained of generalized body pains and multiple cut wounds. He confirmed that the victim had a deep cut wound on the occipital region, deep cut wound on the back, she had fractures of the left radical bone and multiple cut wounds on both legs. He produced a P3 confirming the said injuries.
41. According to the prosecution, the conviction and the sentence are legal.
Analysis and Determination
42. This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the Court of Appeal stated:-
“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.
43. The appellant contended that the prosecution evidence was riddled with material contradictions and inconsistencies capable of rendering the conviction unsafe.
44. The Uganda Court of Appeal in Twehangane Alfred vs Uganda held that it is not every contradiction that warrants rejection of evidence. As the court put it:-
"With regard to contradictions in the prosecution's case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution's case. (emphasis mine).
45. The applicable principle is that not every discrepancy or inconsistency in the testimony of witnesses is fatal to the prosecution case. The material question is whether the contradiction is substantial and goes to the root of the prosecution case.
46. In Philip Nzaka Watu v Republic [2016] eKLR, the Court of Appeal recognized that minor discrepancies are not uncommon in the testimony of truthful witnesses and that it is only material contradictions affecting the substance of the prosecution case that may render a conviction unsafe.
47. Having independently reviewed the evidence, I find that the alleged inconsistencies have no impact on the prosecution case that is weighty enough as to justify the setting aside of the conviction and the sentence.
48. The victim did not contradict the evidence that sexual intercourse occurred. The identification of the appellant as the person with whom she had sexual intercourse was not in doubt.
49. I therefore find that no material contradiction capable of unsettling the conviction was demonstrated.
50. The court will now address its mind to the issue whether there was sufficient evidence to prove that the assault occasioned on PW 1 resulted in grievous bodily harm within the meaning of Section 4 of the Penal Code.
51. In answering the question as to whether the prosecution failed to show the court that truly the appellant herein did commit the act of rape as the court has looked at the definition of rape.
52. The appellant also submitted that the learned trial magistrate erred in meting out the sentence of 25 years and 10 years to run consecutively contrary to the error in law.
53. The court takes note of the fact that the offence of grievous harm and rape happened on the same day, time as executed by the same person against the same person. The foregoing flow from the same platform.
54. Section 14 of the Criminal Procedure Code provides thus:
“(1) Subject to subsection (3), when a person is convicted at one trial of two or more distinct offences, the court may sentence him, for those offences, to the several punishments prescribed therefor which the court is competent to impose; and those punishments when consisting of imprisonment shall commence the one after the expiration of the other in the order the court may direct, unless the court directs that the punishments shall run concurrently.
55. In the case of consecutive sentences, it shall not be necessary for the court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to impose on conviction of a single offence, to send the offender for trial before a higher court.
56. Except in cases to which Section 7(1) of the Criminal Procedure Code applies.Nothing in this section shall authorize a subordinate court to pass, on any person at one trial, consecutive sentences—
i. Of imprisonment which amount in the aggregate to more than fourteen years, or twice the amount of imprisonment which the court, in the exercise of its ordinary jurisdiction, is competent to impose, whichever is the less; or
ii. Of fines which amount in the aggregate to more than twice the amount which the court is so competent to impose.
57. For the purposes of appeal, the aggregate of consecutive sentences imposed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence.”
58. In the case of Peter Mbugua Kabui vs. Republic (2016) eKLR the Court of Appeal stated thus:
“As a general principle, the practice is that if an accused person commits a series of offences at the same time in a single act/transaction a concurrent sentence should be given. However, if separate and distinct offences are committed in different criminal transactions, even though the counts may be in one charge sheet and one trial, it is not illegal to mete out a consecutive term of imprisonment. It is our considered view that the exception in Section 14 (3) of the Criminal Procedure Code is inapplicable to this case in light of the provisions of Section 7 (1) of the Criminal Procedure Code. We further observe that Section 14 of the Criminal Procedure Code stipulates that for purposes of an appeal, the aggregate of consecutive sentences imposed in case of convictions for several offences at one trial, shall be deemed to be a single sentence. We take the view that given the circumstances of this case, the consecutive sentences totaling 20 years imposed on the appellant, cannot said to be excessive. In any event, as we have pointed out earlier, severity of sentence is a question of fact and this Court has no jurisdiction to consider issues of fact in a second appeal. Is the sentence illegal or unlawful" We find that the sentence was legal and lawful, and we have no legal basis for interfering with the same.”
59. Given that the acts committed by the Appellant amounted to two distinct crimes took place at the same time this court is of the view that the appellant should serve the sentences concurrently and I hold.
Determination on Conviction
60. Having independently reconsidered and re-evaluated the entire evidence as required of a first appellate court, I am satisfied that the prosecution proved beyond reasonable doubt. However there is an issue around the sentencing which this court hereby disturbs in line with orders below.
Order;
1) The conviction is upheld.
2) The sentence is set aside and replaced with an order that the appellant shall serve the two sentences concurrently running from the date he was sentenced by the trial court.
Dated, Signed and Delivered Virtually at Eldoret this 30th day of July, 2026