(Appeal from original conviction and sentence by Hon. S.N Mutava, SRM delivered on 25 th September 2025 in Criminal Case No. E041 of 2024 at the Senior Resident Magistrate’s Court, Rongo)
1. The appellant was charged with the offence of rape contrary to section 3(1) of the Sexual Offences Act No. 3 of 2006. Particulars were that on the 21 st day of December, 2024 at Alara Area in Awendo Subcounty within Migori County in the Republic of Kenya, he intentionally and unlawfully caused his penis to penetrate the vagina of W.A.O by use of threats.
2. He faced an alternative count of committing an indecent act contrary to section 11A of the Act. Particulars being that on the same day, 21 st day of December, 2024 at Alara Area in Awendo Subcounty within Migori County in the Republic of Kenya, he intentionally and unlawfully touched the vagina of W.A.O without her consent.
3. The appellant denied both the charge of rape and the alternative count and after a trial in which the prosecution called 5 witnesses and the appellant chose to remain silent, he was convicted for rape and sentenced to life imprisonment.
4. He was aggrieved with both conviction and sentence and lodged a petition of appeal and raised the following grounds of appeal, that:
i. That he did not plead guilty to the charge.
ii. The trial court erred in both law and fact by failing to comply with the provision of Article 50 (2)(h) of the Constitution of Kenya 2010.
iii. The trial court erred in both law and fact by not considering that the ingredients of the offence were not properly proved as per the law.
iv. The trial court erred in both law and fact by meting a harsh and excessive sentence in the circumstances.
5. During the hearing of the appeal, the appellant relied on his written submissions. He urged the court to allow the appeal, quash the conviction and set aside the sentence.
6. The appellant submitted that the trial court erred in law and fact by sentencing him to life imprisonment despite Section 3(3) of the Sexual Offences Act prescribing a minimum sentence of ten years imprisonment. He argues that the sentence violated his constitutional rights under Articles 25(c), 27(1), 28 and 50(2)(p) of the Constitution, contending that life imprisonment is unconstitutional, undermines human dignity, is discriminatory, and does not provide an opportunity for rehabilitation.
7. In support of this argument, he relied on HCCRA PET/E002/2024, Silas Maliolo Zakayo and James Masinde Wafula & 5 Others v Republic, Criminal Appeal No. 12 of 2021, Julius Kitsao Manyeso v Republic (2023) , and the decisions in R v Anderson Mabvuto and Rep v Jamuson White, criminal case No. 74 of 2008 (UK) , wherein the courts observed that the maximum punishment should be reserved for the worst offenders in the worst cases.
8. The appellant argues that he was a first offender, was remorseful during mitigation, had an ailing parent, and that the complainant did not sustain serious injuries. He therefore urges the court, should it uphold the conviction, to substitute the life sentence with the statutory minimum sentence.
9. On the ingredient of the offence, the appellant argued that the prosecution’s evidence did not prove the case beyond reasonable doubt. On the issue of penetration , the appellant argued that the evidence of PW2 was not conclusive that there was rape. He argues that the medical evidence only established that the complainant’s hymen was old and torn, which did not prove that it was broken during the alleged incident. He relied on P.K.W v R [2012] eKLR and Queen v Manuel Vincent Quintanila (1999) AB 769 . He further submitted that the presence of epithelial cells was not conclusive proof of penetration and cited Bernard Opiyo alias Jemaa v Republic, HCCRA No. 13 of 2019 , where the court held that epithelial cells merely indicate friction and do not amount to proof of penetration. The appellant further argues that the presence of urinary tract infections and yeast infections in both parties did not establish sexual contact between them because the complainant was examined only one day after the alleged incident, which was insufficient for incubation and manifestation of infection. He pointed out that no spermatozoa were detected.
10. On identification, the appellant attacked the prosecution’s evidence submitting that PW3 did not previously know her assailant and did not explain the source of light that enabled identification. He argues that PW3 stated that the attack occurred after they had passed the area illuminated by street lights and did not mention moonlight, thereby contradicting PW1. He contended that the intensity and sufficiency of the alleged moonlight were not tested and that the two male companions who were present were unable to identify the attackers. He further submitted that PW2 did not explain how he came to identify and arrest the appellant and that there was a possibility that the appellant was merely an innocent bystander who was mistakenly arrested and thereafter pointed out by the complainant and argued that the circumstances were not favourable for positive identification.
11. The appellant faulted the trial court for relying on the demeanor of PW3 without specifying the aspects of her demeanor that informed its findings. He further argued that the trial court violated Section 311 of the Criminal Procedure Code by failing to call upon him to address the court after he elected to remain silent in his defence, thereby occasioning an unfair trial. Additionally, he contended that he was denied legal representation at state expense despite being confused, fearful and unable to adequately challenge the prosecution evidence or advance matters in his favour.
12. The prosecution on the other hand also relied on their written submissions dated 18 th May, 2026. According to the prosecution counsel, the prosecution proved its case beyond reasonable doubt. It was submitted that the ingredients of the offence were proved namely: penetration, lack of consent and identity of the appellant as the perpetrator.
13. On penetration, the prosecution relied on the evidence PW3, the complainant and PW4, the clinical officer who examined her to argue that penetration was proved. Counsel submitted that PW3 gave a detailed and consistent account of how she was accosted while returning from a night vigil, forcibly separated from her companions, taken across a river, dragged into a forest and sexually assaulted. The complainant testified that the appellant raped her in the forest, thereafter moved her to another location and continued to sexually assault her while threatening to kill her if she resisted.
14. The complainant’s evidence was corroborated by the medical evidence of PW4, who found that her hymen was broken and further established that both the complainant and the appellant had urinary tract infections and yeast infections. The respondent argues that these findings supported the conclusion that sexual activity had occurred and that penetration was sufficiently proved.
15. Regarding identity of the perpetrator , Counsel argued that the complainant spent a considerable amount of time with the appellant from the night of the incident until the following morning at about 9.00 a.m., thereby creating ample opportunity for recognition. It was further submitted that the complainant was found in the company of the appellant by PW2, the Assistant Chief, who arrested them together. The respondent also relied on the evidence of PW1, who testified that she identified the appellant using moonlight and later identified him in court as one of the assailants. It is therefore argued that the evidence of identification was reliable and free from error.
16. On the issue of consent, the respondent submitted that the complainant’s evidence demonstrated that the sexual acts were committed through force, threats and intimidation. Counsel relied on Republic v Oyier [1985] KLR 35 , where the Court of Appeal emphasized that lack of consent is an essential element of rape. The respondent points to the complainant’s testimony that the appellant was armed with a panga, assaulted her, dragged her into the forest, repeatedly raped her and threatened to kill her if she resisted, thereby proving absence of consent beyond doubt.
17. On sentence , the respondent submitted that life imprisonment was lawful and justified under Section 3(3) of the Sexual Offences Act, which permits enhancement of sentence to life imprisonment. Counsel pointed out that the aggravating circumstances warranted the maximum sentence, including the kidnapping of the complainant, the use of threats and a panga, the movement of the complainant from place to place, and the repeated sexual assaults committed over several hours. The respondent further emphasizes that the complainant was deeply traumatized, noting that the trial court recorded that she broke down while giving evidence. She further submitted that rape leaves lasting psychological, emotional and physical effects on victims and that the life sentence imposed by the trial court was lawful, fair, proportionate and sufficiently deterrent.
18. I have considered this appeal, submissions and the decisions relied on. I have also read the record of the trial court and the impugned judgment. This being the first appeal, it is by way of a retrial and parties are entitled to this court’s reevaluation, reanalysis and reconsideration of the evidence and its own decision on that evidence. The court, however, bears in mind that it did not see the witness testify and I give due allowance for that. (See Okeno v Republic [1972] EA 32).
19. On whether the absence of legal representation guaranteed under Article 50(2)(h) of the Constitution prejudiced the Appellant’s trial , the Appellant submitted that the trial court did not meet the requirements of the said Article. The Article provides that-
“Every accused person has the right to a fair trial, which includes the right to choose, and be represented by, an advocate, and to be informed of this right promptly”.
20. As stated, the Appellant was charged with the offence of rape. A perusal of the proceedings show that the Appellant was informed by the trial court of his right to legal representation of his choice. He was also informed that he was entitled to apply to the Legal Aid Board for assistance.
21. The Appellant chose to represent himself. He did not demonstrate that he requested the trial court to be provided with legal representation and that his request was declined and/or demonstrate that he was likely to suffer substantial injustice if the trial proceeded without legal representation. This Court also notes from the record that the Appellant understood the trial process and he was able to effectively cross- examine the witnesses.
22. For the reasons stated above, this court comes to the conclusion that the Appellant’s constitutional and fundamental right to legal representation under Article 50(2)(h) of the Constitution was not violated.
23. On whether the prosecution proved its case beyond reasonable doubt , the complainant, PW3, testified that on 21st December 2024 she attended a night vigil at church together with Winnie Adongo (PW1). At about midnight, while returning home, they were confronted by two men unknown to them. She stated that PW3 attempted to flee but was grabbed by the appellant, while the other assailant seized her. She testified that there was sufficient moonlight which enabled her to identify the appellant. Both assailants were armed with pangas. They escorted the two girls towards a river, after which the appellant crossed the river with PW3 while she remained with the other assailant.
24. She testified that the man who held her demanded sex and asked her to smoke bhang, both of which she refused. He thereafter raped her before releasing her. She returned home and, upon finding that the complainant had not returned, went back to search for her near the river at about 2.00 a.m. but was unsuccessful.
25. The following day at about noon, the complainant returned in the company of the appellant after both had been arrested by the area Chief. PW1 stated that she found them at the police station and that she, the complainant and the suspects were subsequently taken to hospital for examination and treatment. During cross-examination, she clarified that they had gone to church at about 9.00 p.m. and left at midnight. She stated that she did not know the names of either assailant prior to the incident.
26. PW2, Ayuka Eliakim, the Senior Assistant Chief of Kakmasia Sub-location, testified that on 21 st December 2024 at about 4.00 a.m. he received a report from Florence Atieno, the guardian of Winnie Atieno, that Winnie and Ivone Akinyi had been kidnapped while returning from a night vigil. He advised her to report the matter at Kwoyo Police Station.
27. Later, while returning from the police station, he encountered Winnie in the company of the appellant, Steve. He stopped them and took them to his office before calling for reinforcement and informing police officers from Kwoyo Police Station. He testified that the appellant identified the other suspect as David Omondi, who was subsequently arrested. PW2 stated that the appellant, also known by the alias “Obwanjo,” had previously been suspected of theft.
28. He further testified that Winnie informed him that she and Ivone had been attacked by two men who chased away the male companions they were walking with and that she had been taken to a homestead where the appellant demanded sex from her. During cross-examination, PW2 stated that he arrested the appellant at about 9.00 a.m. and that no panga was recovered from him.
29. PW3, Winnie Atieno Odongo, the complainant, testified that on the night of 21st December 2024 she attended a church vigil together with PW1, Brian Otieno and Obonyo. As they walked home shortly after midnight, the two boys informed them that two men were following them. She stated that there were street lights along part of the route, enabling her to observe one of the men wearing black shorts without a shirt and the other dressed entirely in black with partially concealed faces. She testified that the appellant approached and slapped her with a panga while the other assailant grabbed PW1. The assailants stated that they only wanted sex and would thereafter release them. She testified that the two boys fled and that she and PW1 were escorted towards a river. She crossed the river with the appellant while PW1 remained behind.
30. She testified that the appellant took her into a forest and demanded that she lie down. When she refused, he assaulted her, forced her to the ground and penetrated her vagina with his penis. She stated that she attempted to seek help by shouting but the appellant beat her and moved her deeper into the forest, where he raped her a second time. Thereafter, he took her to a house where another boy was present. The boy left, leaving them in the house. She testified that the appellant locked her inside and again forced her to have sexual intercourse with him, threatening to kill her if she resisted. Later, he left and locked her in the house before returning with milk and cake, which she refused to take.
31. The following morning, he opened the door and released her. Outside, she met a pastor who recognized her and inquired about her whereabouts. Shortly thereafter, the area Chief found her and took both her and the appellant to his office. She was then escorted to the police station and hospital for treatment and examination. She identified the appellant in court as the person who abducted and repeatedly raped her and stated that she had first seen him on the night of the incident. She identified the treatment notes and a P3 Form.
32. PW4, Evans Mose, a Clinical Officer at Awendo Sub-County Hospital, testified that he examined PW3 on 22 nd December 2024. He stated that laboratory examination revealed epithelial cells and a yeast infection. On physical examination, her hymen was found to be broken, though not freshly broken, while both labia appeared normal. He produced the treatment notes and the P3 Form.
33. PW4 also examined the appellant on the same date. He found the accused to be in fair general condition with normal genitalia but suffering from a yeast infection. He produced the treatment notes and P3 Form. He testified that urinalysis established that both the complainant and the appellant had urinary tract infections which are ordinarily sexually transmitted and opined that the likelihood of both being sexually active was high.
34. PW5, PC Erastus Musa No. 112677, attached to Awendo Police Station and serving in the Gender-Based Violence Unit, testified that he was the investigating officer in the matter. He stated that on 21 st December 2024 at about 4.00 p.m., he was instructed by the OCS to proceed to Kodera Kwoyo to collect suspects and victims in relation to a defilement case. He arrested two suspects and two victims, noting that the second suspect and victim were the subject of a separate case before another court.
35. He testified that PW3 informed him that while returning from a night vigil she and her companions were attacked by the appellant and another man, both armed with pangas. The assailants chased away the male companions and the appellant grabbed her, slapped her with a panga when she resisted, took her into a bush and raped her twice before moving her from one homestead to another while continuing to sexually assault her.
36. He testified that the following day she escaped and met the area Chief, who facilitated the arrest of the appellant. PW5 visited the scene, observed signs of struggle, recorded witness statements and arranged for the complainant to undergo medical examination. Upon completion of investigations, he charged the appellant. During cross-examination, he confirmed that the complainant’s clothes were not recovered and that the panga allegedly used during the incident was never recovered.
24. When put on his defence, the appellant elected to remain silent.
25. From the above evidence the trial court was satisfied that the prosecution proved its case, convicted the appellant and sentenced him prompting this appeal. The appellant has faulted the trial court on many grounds. However, from the grounds of appeal and submissions, the critical issues that arise for determination in this appeal, are; whether the prosecution proved the case of rape case beyond reasonable doubt and whether the sentence was harsh and excessive.
26. The law places the burden of proof on the prosecution and that proof must be beyond any reasonable doubt. In a charge of rape, the prosecution must prove penetration, lack of consent and identity of the perpetrator. The complainant spent a considerable amount of time with the appellant from the night of the incident until the following morning at about 9.00a.m., thereby creating ample opportunity for recognition. The complainant was found in the company of the appellant by PW2, the Assistant Chief, who arrested them together and the complainant testified that she identified the appellant using moonlight and later identified him in court as one of the assailants. There would therefore be no likelihood of mistaken identity.
27. The prosecution was also required to prove penetration. Penetration is defined by section 2 of the Act as partial or complete insertion of one’s private organ into the other’s private organ. To prove penetration, the prosecution had to show that there was either partial or complete insertion of the appellant’s male organ into the complainant’s private organ.
28. The prosecution relied on the evidence of the complainant and that of PW4, the clinical officer to prove penetration which must have been through force or deceit to amount to rape. The complainant testified that the appellant took her into a forest and forced her to lie down. When she refused, he assaulted her, forced her to the ground and raped her. Thereafter, he took her to a house where another boy was present. The boy left, leaving them in the house. She testified that the appellant locked her inside and again forced her to have sexual intercourse with him, threatening to kill her if she resisted.
29. PW4 on his part testified that he examined the complainant and the laboratory examination revealed epithelial cells and a yeast infection. On physical examination, her hymen was found to be broken, though not freshly broken, while both labia appeared normal. He also examined the appellant and found him suffering from a yeast infection.
29. In Philip Nzaka Watu v Republic [2006] eKLR, it was held that that to find conviction in a Criminal case, the trial court has to be satisfied of the appellant’s guilt beyond reasonable doubt. On proof beyond reasonable doubt, the court stated in Stephen Nguli Mulili v Republic [2014] eKLR:
“[I]t is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP V WOOLMINGTON, (1935) UKHL 1 where the court eloquently stated that the “golden thread” in the “web of English common law” is that it is the duty of the prosecution to prove its case. The Kenyan Courts have upheld this position in numerous cases. See FESTUS MUKATI MURWA V R, [2013] eKLR.”
30. In the case of Miller v Ministry of Pensions, [1947] 2 All E R 372, Lord Denning stated with regard to the degree of proof beyond reasonable doubt:
“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
31. Applying the above principles this court is of the view that the prosecution proved its case beyond reasonable doubt. The evidence of PW3 which was corroborated by medical evidence tendered by PW4 and factual evidence by other prosecution witnesses.
32.On sentence, the appellant contended that it was unlawful, unreasonable, harsh and excessive. This Court takes in account that a n appellate court will interfere with sentence only where the trial court acted on wrong principles, overlooked a material factor, considered irrelevant matters or imposed a manifestly excessive sentence.
33. I have considered the record and note that the trial court took the appellant's mitigation into account. Although the offence is undoubtedly serious with aggravating circumstances, the sentence of life imprisonment was, in the circumstances, manifestly excessive. The interests of justice will be adequately served by a lesser sentence prescribed by section 3(3) of the sexual offences Act. I also take into consideration the totality of the circumstances in this case and objectives of sentencing.
34. Accordingly, the appeal against sentence partially succeeds. The sentence of life imprisonment is substituted with a sentence of ten (10) years' imprisonment, to run from 21 st December 2024, being the date of the appellant's arrest, pursuant to section 333(2) of the Criminal Procedure Code.
35. Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 16 TH DAY OF JULY, 2026
Judgment delivered virtually in the presence of:
N/A for the Respondent
Steve Oloo- Appellant
Susan Nzioka – Court Assistant
17
1. The appellant was charged with the offence of rape contrary to section 3(1) of the Sexual Offences Act No. 3 of 2006. Particulars were that on the 21 st day of December, 2024 at Alara Area in Awendo Subcounty within Migori County in the Republic of Kenya, he intentionally and unlawfully caused his penis to penetrate the vagina of W.A.O by use of threats.
2. He faced an alternative count of committing an indecent act contrary to section 11A of the Act. Particulars being that on the same day, 21 st day of December, 2024 at Alara Area in Awendo Subcounty within Migori County in the Republic of Kenya, he intentionally and unlawfully touched the vagina of W.A.O without her consent.
3. The appellant denied both the charge of rape and the alternative count and after a trial in which the prosecution called 5 witnesses and the appellant chose to remain silent, he was convicted for rape and sentenced to life imprisonment.
4. He was aggrieved with both conviction and sentence and lodged a petition of appeal and raised the following grounds of appeal, that:
i. That he did not plead guilty to the charge.
ii. The trial court erred in both law and fact by failing to comply with the provision of Article 50 (2)(h) of the Constitution of Kenya 2010.
iii. The trial court erred in both law and fact by not considering that the ingredients of the offence were not properly proved as per the law.
iv. The trial court erred in both law and fact by meting a harsh and excessive sentence in the circumstances.
5. During the hearing of the appeal, the appellant relied on his written submissions. He urged the court to allow the appeal, quash the conviction and set aside the sentence.
6. The appellant submitted that the trial court erred in law and fact by sentencing him to life imprisonment despite Section 3(3) of the Sexual Offences Act prescribing a minimum sentence of ten years imprisonment. He argues that the sentence violated his constitutional rights under Articles 25(c), 27(1), 28 and 50(2)(p) of the Constitution, contending that life imprisonment is unconstitutional, undermines human dignity, is discriminatory, and does not provide an opportunity for rehabilitation.
7. In support of this argument, he relied on HCCRA PET/E002/2024, Silas Maliolo Zakayo and James Masinde Wafula & 5 Others v Republic, Criminal Appeal No. 12 of 2021, Julius Kitsao Manyeso v Republic (2023) , and the decisions in R v Anderson Mabvuto and Rep v Jamuson White, criminal case No. 74 of 2008 (UK) , wherein the courts observed that the maximum punishment should be reserved for the worst offenders in the worst cases.
8. The appellant argues that he was a first offender, was remorseful during mitigation, had an ailing parent, and that the complainant did not sustain serious injuries. He therefore urges the court, should it uphold the conviction, to substitute the life sentence with the statutory minimum sentence.
9. On the ingredient of the offence, the appellant argued that the prosecution’s evidence did not prove the case beyond reasonable doubt. On the issue of penetration , the appellant argued that the evidence of PW2 was not conclusive that there was rape. He argues that the medical evidence only established that the complainant’s hymen was old and torn, which did not prove that it was broken during the alleged incident. He relied on P.K.W v R [2012] eKLR and Queen v Manuel Vincent Quintanila (1999) AB 769 . He further submitted that the presence of epithelial cells was not conclusive proof of penetration and cited Bernard Opiyo alias Jemaa v Republic, HCCRA No. 13 of 2019 , where the court held that epithelial cells merely indicate friction and do not amount to proof of penetration. The appellant further argues that the presence of urinary tract infections and yeast infections in both parties did not establish sexual contact between them because the complainant was examined only one day after the alleged incident, which was insufficient for incubation and manifestation of infection. He pointed out that no spermatozoa were detected.
10. On identification, the appellant attacked the prosecution’s evidence submitting that PW3 did not previously know her assailant and did not explain the source of light that enabled identification. He argues that PW3 stated that the attack occurred after they had passed the area illuminated by street lights and did not mention moonlight, thereby contradicting PW1. He contended that the intensity and sufficiency of the alleged moonlight were not tested and that the two male companions who were present were unable to identify the attackers. He further submitted that PW2 did not explain how he came to identify and arrest the appellant and that there was a possibility that the appellant was merely an innocent bystander who was mistakenly arrested and thereafter pointed out by the complainant and argued that the circumstances were not favourable for positive identification.
11. The appellant faulted the trial court for relying on the demeanor of PW3 without specifying the aspects of her demeanor that informed its findings. He further argued that the trial court violated Section 311 of the Criminal Procedure Code by failing to call upon him to address the court after he elected to remain silent in his defence, thereby occasioning an unfair trial. Additionally, he contended that he was denied legal representation at state expense despite being confused, fearful and unable to adequately challenge the prosecution evidence or advance matters in his favour.
12. The prosecution on the other hand also relied on their written submissions dated 18 th May, 2026. According to the prosecution counsel, the prosecution proved its case beyond reasonable doubt. It was submitted that the ingredients of the offence were proved namely: penetration, lack of consent and identity of the appellant as the perpetrator.
13. On penetration, the prosecution relied on the evidence PW3, the complainant and PW4, the clinical officer who examined her to argue that penetration was proved. Counsel submitted that PW3 gave a detailed and consistent account of how she was accosted while returning from a night vigil, forcibly separated from her companions, taken across a river, dragged into a forest and sexually assaulted. The complainant testified that the appellant raped her in the forest, thereafter moved her to another location and continued to sexually assault her while threatening to kill her if she resisted.
14. The complainant’s evidence was corroborated by the medical evidence of PW4, who found that her hymen was broken and further established that both the complainant and the appellant had urinary tract infections and yeast infections. The respondent argues that these findings supported the conclusion that sexual activity had occurred and that penetration was sufficiently proved.
15. Regarding identity of the perpetrator , Counsel argued that the complainant spent a considerable amount of time with the appellant from the night of the incident until the following morning at about 9.00 a.m., thereby creating ample opportunity for recognition. It was further submitted that the complainant was found in the company of the appellant by PW2, the Assistant Chief, who arrested them together. The respondent also relied on the evidence of PW1, who testified that she identified the appellant using moonlight and later identified him in court as one of the assailants. It is therefore argued that the evidence of identification was reliable and free from error.
16. On the issue of consent, the respondent submitted that the complainant’s evidence demonstrated that the sexual acts were committed through force, threats and intimidation. Counsel relied on Republic v Oyier [1985] KLR 35 , where the Court of Appeal emphasized that lack of consent is an essential element of rape. The respondent points to the complainant’s testimony that the appellant was armed with a panga, assaulted her, dragged her into the forest, repeatedly raped her and threatened to kill her if she resisted, thereby proving absence of consent beyond doubt.
17. On sentence , the respondent submitted that life imprisonment was lawful and justified under Section 3(3) of the Sexual Offences Act, which permits enhancement of sentence to life imprisonment. Counsel pointed out that the aggravating circumstances warranted the maximum sentence, including the kidnapping of the complainant, the use of threats and a panga, the movement of the complainant from place to place, and the repeated sexual assaults committed over several hours. The respondent further emphasizes that the complainant was deeply traumatized, noting that the trial court recorded that she broke down while giving evidence. She further submitted that rape leaves lasting psychological, emotional and physical effects on victims and that the life sentence imposed by the trial court was lawful, fair, proportionate and sufficiently deterrent.
18. I have considered this appeal, submissions and the decisions relied on. I have also read the record of the trial court and the impugned judgment. This being the first appeal, it is by way of a retrial and parties are entitled to this court’s reevaluation, reanalysis and reconsideration of the evidence and its own decision on that evidence. The court, however, bears in mind that it did not see the witness testify and I give due allowance for that. (See Okeno v Republic [1972] EA 32).
19. On whether the absence of legal representation guaranteed under Article 50(2)(h) of the Constitution prejudiced the Appellant’s trial , the Appellant submitted that the trial court did not meet the requirements of the said Article. The Article provides that-
“Every accused person has the right to a fair trial, which includes the right to choose, and be represented by, an advocate, and to be informed of this right promptly”.
20. As stated, the Appellant was charged with the offence of rape. A perusal of the proceedings show that the Appellant was informed by the trial court of his right to legal representation of his choice. He was also informed that he was entitled to apply to the Legal Aid Board for assistance.
21. The Appellant chose to represent himself. He did not demonstrate that he requested the trial court to be provided with legal representation and that his request was declined and/or demonstrate that he was likely to suffer substantial injustice if the trial proceeded without legal representation. This Court also notes from the record that the Appellant understood the trial process and he was able to effectively cross- examine the witnesses.
22. For the reasons stated above, this court comes to the conclusion that the Appellant’s constitutional and fundamental right to legal representation under Article 50(2)(h) of the Constitution was not violated.
23. On whether the prosecution proved its case beyond reasonable doubt , the complainant, PW3, testified that on 21st December 2024 she attended a night vigil at church together with Winnie Adongo (PW1). At about midnight, while returning home, they were confronted by two men unknown to them. She stated that PW3 attempted to flee but was grabbed by the appellant, while the other assailant seized her. She testified that there was sufficient moonlight which enabled her to identify the appellant. Both assailants were armed with pangas. They escorted the two girls towards a river, after which the appellant crossed the river with PW3 while she remained with the other assailant.
24. She testified that the man who held her demanded sex and asked her to smoke bhang, both of which she refused. He thereafter raped her before releasing her. She returned home and, upon finding that the complainant had not returned, went back to search for her near the river at about 2.00 a.m. but was unsuccessful.
25. The following day at about noon, the complainant returned in the company of the appellant after both had been arrested by the area Chief. PW1 stated that she found them at the police station and that she, the complainant and the suspects were subsequently taken to hospital for examination and treatment. During cross-examination, she clarified that they had gone to church at about 9.00 p.m. and left at midnight. She stated that she did not know the names of either assailant prior to the incident.
26. PW2, Ayuka Eliakim, the Senior Assistant Chief of Kakmasia Sub-location, testified that on 21 st December 2024 at about 4.00 a.m. he received a report from Florence Atieno, the guardian of Winnie Atieno, that Winnie and Ivone Akinyi had been kidnapped while returning from a night vigil. He advised her to report the matter at Kwoyo Police Station.
27. Later, while returning from the police station, he encountered Winnie in the company of the appellant, Steve. He stopped them and took them to his office before calling for reinforcement and informing police officers from Kwoyo Police Station. He testified that the appellant identified the other suspect as David Omondi, who was subsequently arrested. PW2 stated that the appellant, also known by the alias “Obwanjo,” had previously been suspected of theft.
28. He further testified that Winnie informed him that she and Ivone had been attacked by two men who chased away the male companions they were walking with and that she had been taken to a homestead where the appellant demanded sex from her. During cross-examination, PW2 stated that he arrested the appellant at about 9.00 a.m. and that no panga was recovered from him.
29. PW3, Winnie Atieno Odongo, the complainant, testified that on the night of 21st December 2024 she attended a church vigil together with PW1, Brian Otieno and Obonyo. As they walked home shortly after midnight, the two boys informed them that two men were following them. She stated that there were street lights along part of the route, enabling her to observe one of the men wearing black shorts without a shirt and the other dressed entirely in black with partially concealed faces. She testified that the appellant approached and slapped her with a panga while the other assailant grabbed PW1. The assailants stated that they only wanted sex and would thereafter release them. She testified that the two boys fled and that she and PW1 were escorted towards a river. She crossed the river with the appellant while PW1 remained behind.
30. She testified that the appellant took her into a forest and demanded that she lie down. When she refused, he assaulted her, forced her to the ground and penetrated her vagina with his penis. She stated that she attempted to seek help by shouting but the appellant beat her and moved her deeper into the forest, where he raped her a second time. Thereafter, he took her to a house where another boy was present. The boy left, leaving them in the house. She testified that the appellant locked her inside and again forced her to have sexual intercourse with him, threatening to kill her if she resisted. Later, he left and locked her in the house before returning with milk and cake, which she refused to take.
31. The following morning, he opened the door and released her. Outside, she met a pastor who recognized her and inquired about her whereabouts. Shortly thereafter, the area Chief found her and took both her and the appellant to his office. She was then escorted to the police station and hospital for treatment and examination. She identified the appellant in court as the person who abducted and repeatedly raped her and stated that she had first seen him on the night of the incident. She identified the treatment notes and a P3 Form.
32. PW4, Evans Mose, a Clinical Officer at Awendo Sub-County Hospital, testified that he examined PW3 on 22 nd December 2024. He stated that laboratory examination revealed epithelial cells and a yeast infection. On physical examination, her hymen was found to be broken, though not freshly broken, while both labia appeared normal. He produced the treatment notes and the P3 Form.
33. PW4 also examined the appellant on the same date. He found the accused to be in fair general condition with normal genitalia but suffering from a yeast infection. He produced the treatment notes and P3 Form. He testified that urinalysis established that both the complainant and the appellant had urinary tract infections which are ordinarily sexually transmitted and opined that the likelihood of both being sexually active was high.
34. PW5, PC Erastus Musa No. 112677, attached to Awendo Police Station and serving in the Gender-Based Violence Unit, testified that he was the investigating officer in the matter. He stated that on 21 st December 2024 at about 4.00 p.m., he was instructed by the OCS to proceed to Kodera Kwoyo to collect suspects and victims in relation to a defilement case. He arrested two suspects and two victims, noting that the second suspect and victim were the subject of a separate case before another court.
35. He testified that PW3 informed him that while returning from a night vigil she and her companions were attacked by the appellant and another man, both armed with pangas. The assailants chased away the male companions and the appellant grabbed her, slapped her with a panga when she resisted, took her into a bush and raped her twice before moving her from one homestead to another while continuing to sexually assault her.
36. He testified that the following day she escaped and met the area Chief, who facilitated the arrest of the appellant. PW5 visited the scene, observed signs of struggle, recorded witness statements and arranged for the complainant to undergo medical examination. Upon completion of investigations, he charged the appellant. During cross-examination, he confirmed that the complainant’s clothes were not recovered and that the panga allegedly used during the incident was never recovered.
24. When put on his defence, the appellant elected to remain silent.
25. From the above evidence the trial court was satisfied that the prosecution proved its case, convicted the appellant and sentenced him prompting this appeal. The appellant has faulted the trial court on many grounds. However, from the grounds of appeal and submissions, the critical issues that arise for determination in this appeal, are; whether the prosecution proved the case of rape case beyond reasonable doubt and whether the sentence was harsh and excessive.
26. The law places the burden of proof on the prosecution and that proof must be beyond any reasonable doubt. In a charge of rape, the prosecution must prove penetration, lack of consent and identity of the perpetrator. The complainant spent a considerable amount of time with the appellant from the night of the incident until the following morning at about 9.00a.m., thereby creating ample opportunity for recognition. The complainant was found in the company of the appellant by PW2, the Assistant Chief, who arrested them together and the complainant testified that she identified the appellant using moonlight and later identified him in court as one of the assailants. There would therefore be no likelihood of mistaken identity.
27. The prosecution was also required to prove penetration. Penetration is defined by section 2 of the Act as partial or complete insertion of one’s private organ into the other’s private organ. To prove penetration, the prosecution had to show that there was either partial or complete insertion of the appellant’s male organ into the complainant’s private organ.
28. The prosecution relied on the evidence of the complainant and that of PW4, the clinical officer to prove penetration which must have been through force or deceit to amount to rape. The complainant testified that the appellant took her into a forest and forced her to lie down. When she refused, he assaulted her, forced her to the ground and raped her. Thereafter, he took her to a house where another boy was present. The boy left, leaving them in the house. She testified that the appellant locked her inside and again forced her to have sexual intercourse with him, threatening to kill her if she resisted.
29. PW4 on his part testified that he examined the complainant and the laboratory examination revealed epithelial cells and a yeast infection. On physical examination, her hymen was found to be broken, though not freshly broken, while both labia appeared normal. He also examined the appellant and found him suffering from a yeast infection.
29. In Philip Nzaka Watu v Republic [2006] eKLR, it was held that that to find conviction in a Criminal case, the trial court has to be satisfied of the appellant’s guilt beyond reasonable doubt. On proof beyond reasonable doubt, the court stated in Stephen Nguli Mulili v Republic [2014] eKLR:
“[I]t is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP V WOOLMINGTON, (1935) UKHL 1 where the court eloquently stated that the “golden thread” in the “web of English common law” is that it is the duty of the prosecution to prove its case. The Kenyan Courts have upheld this position in numerous cases. See FESTUS MUKATI MURWA V R, [2013] eKLR.”
30. In the case of Miller v Ministry of Pensions, [1947] 2 All E R 372, Lord Denning stated with regard to the degree of proof beyond reasonable doubt:
“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
31. Applying the above principles this court is of the view that the prosecution proved its case beyond reasonable doubt. The evidence of PW3 which was corroborated by medical evidence tendered by PW4 and factual evidence by other prosecution witnesses.
32.On sentence, the appellant contended that it was unlawful, unreasonable, harsh and excessive. This Court takes in account that a n appellate court will interfere with sentence only where the trial court acted on wrong principles, overlooked a material factor, considered irrelevant matters or imposed a manifestly excessive sentence.
33. I have considered the record and note that the trial court took the appellant's mitigation into account. Although the offence is undoubtedly serious with aggravating circumstances, the sentence of life imprisonment was, in the circumstances, manifestly excessive. The interests of justice will be adequately served by a lesser sentence prescribed by section 3(3) of the sexual offences Act. I also take into consideration the totality of the circumstances in this case and objectives of sentencing.
34. Accordingly, the appeal against sentence partially succeeds. The sentence of life imprisonment is substituted with a sentence of ten (10) years' imprisonment, to run from 21 st December 2024, being the date of the appellant's arrest, pursuant to section 333(2) of the Criminal Procedure Code.
35. Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 16 TH DAY OF JULY, 2026
Judgment delivered virtually in the presence of:
N/A for the Respondent
Steve Oloo- Appellant
Susan Nzioka – Court Assistant
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