https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1514

Ahmed v Republic (Criminal Appeal E137 of 2022) [2026] KECA 1514 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1514 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Appeal E137 of 2022 PO Kiage, J Mohammed & MB Kairaria, JJA July 31, 2026 Between Kalmoi Shale Ahmed Appellant and Republic Respondent (An appeal from the judgement and sentence of the High Court of Kenya at Garissa [A. A. Aroni, J.] delivered on 2nd June 2022 in High Court Criminal Appeal No. E010 of 2021 Criminal Appeal E010 of 2021 ) Judgment 1.Kalmoi Shale Ahmed, the appellant was arraigned at the Chief Magistrate’s Court at Garissa in Sexual Offences Case No. 24 of 2020 charged with the offence of rape contrary to section 3[1][a] [3] of the sexual offences Act, No. 3 of 2006. The particulars of the offence were that Kalmoi Shale Ahmed intentionally and unlawfully caused his penis to penetrate the vagina of KGH without her consent on diverse dates between 18th March 2020 and 22nd May 2020 at[Particulars withheld] in Wajir East Sub County within Wajir County. 2.The appellant faced an alternative count of committing an indecent act with an adult contrary to Section 11A of the Sexual Offences Act the particulars of which were that he intentionally touched the breasts of KGH with his hands against her will on diverse dates between 18th March 2020 and 22nd May 2020 at[Particulars withheld] in Wajir East Sub-County. 3.In count 2 the appellant was charged with the offence of wrongful distribution of obscene or intimate images contrary to Section 37 of Computer Misuse and Cyber Crime Act 2018. The particulars of the offence were that the appellant jointly with others not before court, wrongfully distributed obscene and intimate images of KGH through a WhatsApp forum known as ADAN FAQA on diverse dates between 18th March 2020 and 1st June 2020 at Arbaquaramso village in Wajir East Sub County within Wajir County. 4.The appellant pleaded not guilty when the charges were read out to him on 3/7/2020 and the case proceeded to trial before Hon. C. Maundu [CM]. The prosecution called nine [9] witnesses while the appellant gave sworn evidence in his defence and did not call any other witness. 5.At the end of the trial the learned magistrate found that the charge of rape had not been proved to the required standard and acquitted the appellant on that charge and the alternative charge of committing an indecent act, in a judgement delivered on 14th April 2021. 6.The trial court also found that the second count of wrongful distribution of obscene or intimate images was not proved against the appellant to the required standard [i.e beyond reasonable doubt], gave him the benefit of doubt and acquitted him under Section 215 of the Criminal Procedure Code. 7.Aggrieved by that judgment the Republic appealed to the High Court at Garissa in HCCRC NO. E010 of 2021 on six grounds and prayed that the judgement of trial court be set aside and substituted with a conviction. At the High Court the respondent contended that the learned magistrate erred in law and fact by:a.finding that the ingredients of the offence of rape had not been proved thereby occasioning a miscarriage of justice;b.finding that the ingredients of the offence of wrongful distribution of obscene and intimate images had not been proved;c.finding that the prosecution failed to discharge its burden beyond reasonable doubt;d.failing and or neglecting to take into consideration the major contradictions and inconsistencies of the Respondent;e.considering extraneous issues in arriving at the judgement thereby occasioning a miscarriage of justice. 8.The appeal was heard and allowed by Ali-Aroni J [as she then was], in a judgement delivered on 2nd June, 2022. The learned judge set aside the trial court’s decision on both counts and substituted the acquittal with a conviction for the offences of rape and distribution of obscene image. Following the conviction and upon considering the appellant’s mitigation and the victim impact assessment report the learned judge sentenced the applicant to serve twenty [20] years imprisonment for the offence of rape, and two years for the second offence of wrongfully distributing obscene and intimate image on 11th July,2022, with both sentences running concurrently. Additionally the judge ordered the appellant to pay the complainant a sum of ksh500000 in damages as compensation for pain, suffering and damage to her dignity. 9.The appellant was dissatisfied with the decision of the High Court on conviction, sentence and the order for compensation and filed the appeal now before us. In his memorandum of appeal dated 12th July 2022 the appellant challenges his conviction and sentence on seven grounds contending that the learned judge erred in law by:a.convicting the appellant on insufficient and contradictory evidence;b.holding that the prosecution had proved its case beyond reasonable doubt;c.disregarding the sworn testimony of the appellant and shifting the burden of proof to the appellant;d.convicting the appellant on inconsistent circumstantial evidence despite there being co-existing circumstances which had weakened the inference of guilt of the appellant;e.failing to take into consideration the submissions of the appellant and dismissing the appellant’s defence without any cogent reasons;f.making an order requiring the appellant to personally compensate the victim a sum of ksh 500,000 for pain and suffering;g.imposing an illegal and manifestly harsh and excessive sentence. 10.The Appellant filed amended grounds of appeal and written submissions through the Officer in Charge Kamiti main prison on 15/2/2024 but these did not feature at all in the written submissions dated 7th June, 2024 whose focus is on the original six grounds of appeal. 11.Based on those grounds of appeal, the record of appeal together with the written submissions dated 7th June, 2024 as orally highlighted before us by Mr. Gichuki Advocate at the virtual hearing on 25th February, 2026, the appellant prays that his appeal be allowed, the conviction and sentence be quashed or set aside and he be set at liberty. Lastly he prays that the order for compensation to the victim be set aside. 12.We heard the appeal on 25th February, 2025. Learned Counsel Mr. Gichuki appeared for the Appellant. He relied on the written submissions dated 7th June 2024, which he highlighted orally and cited case law. First Counsel for the Appellant submitted that the prosecution case is laden with glaring inconsistencies that go to the root of the case; that there was no proof of penetration beyond reasonable doubt , as this was a case testimony of a sole witness [the complainant] the court could only convict only if her evidence was believable, that the evidence of PW2 does not back the conclusion that there was rape, that the complaint of rape was an afterthought which only sprouted when the accused circulated the photos, the complainant did not tell anyone about the rape and there was no formal complaint for the offence of rape and the evidence on record does not show that the complainant was sexually assaulted. 13.It was further submitted that none of the three elements of rape within the contemplation of Section 3 of the Sexual offences Act was proved to the required standard; the learned judge disregarded the sworn testimony of Appellant, pw8 disowned the WhatsApp group, the prosecution did not avail a print out of the membership of the group, the circumstantial evidence did not irresistibly point to the accused. 14.On sentence the Appellant submitted that the 20 years prison sentence imposed by the learned judge is illegal, manifestly harsh , that the judge did not state the reasons for the sentence which is beyond the ten[10] years minimum sentence prescribed for the offence of rape under Section 3 (3) of the Sexual Offences Act. 15.On the order requiring the Appellant to pay ksh 500,000 compensation it was submitted that it should be set aside because the appellant cannot be held liable to a non-existent whatsapp group, PW8 disowned the Whatsapp group and PW7 gave evidence to the effect that the Appellant never sent any photo to a whatsapp group. 16.M/S Vitsengwa learned Prosecution Counsel stepped in as appearing for the Republic and relied on the written submissions dated 19th March 2019 but did not highlight the same for fear of contradicting what is in those submissions which she had neither prepared nor read. The said submissions are prepared and filed by Mr. O. J Omondi Senior Ass. Director of Public Prosecutions who neither attended Court nor sent another counsel to hold his brief, which is highly irregular and improper considering that the substance of his submissions is to concede the appeal contending that the prosecution evidence tendered during the trial was very unsafe to base a conviction upon it. 17.We have considered the grounds of appeal, the record of appeal, the parties’ submissions and cited case law. In our assessment the broad issues that fall for determination are two-fold namely; whether or not the first appellate court judge erred in law in setting aside the appellant’s acquittal on both counts and substituting it with conviction for the offences of rape and wrongful distribution of obscene or intimate image. The second question regards the sentence passed namely:i.whether the 20 years and 2 years imprisonment sentences for the offence of rape and wrongful distribution of obscene image is illegal, harsh and excessive andii.whether the order for compensation was correctly made. 18.This is a second appeal and our jurisdiction is by dint of Section 361 [1] [a] of the Criminal Procedure Code limited to considering matters of law. [See Mwanzia Musembi vs. Republic [2017] eKLR; Ongera vs. Republic[2026] KECA 152[KLR]. The Supreme Court in Republic vs. Mwangi; Initiative for Strategic Litigation in Africa [ISLA] & 3 Others [Amicus Curiae] [2024] KESC 34 stated as follows regarding the scope of this Court’s jurisdiction on a second appeal:“Thus, the Court of Appeals jurisdiction on second appeals is limited to only matters of law and it could not interfere with the decision of the High Court on facts unless it was shown that the trial court and the first appellate court considered matters they should not have considered, or failed to consider matters they should have considered, or were plainly wrong in their decision when considering the evidence as a whole. In such a case such omission or commissions would be treated as matters of law.” 19.The two courts below reached different verdicts on the question of whether the appellant was guilty or not; with the trial court returning a verdict of not guilty and acquitting while the first appellate court returned a verdict of guilty, convicted and sentenced the appellant precipitating the instant appeal. 20.In this appeal the appellant complains that the first appellate court committed infractions of the law in the impugned judgement and faults the judge for: dismissing his defence without cogent reasons; disregarding his sworn testimony; shifting the burden of proof holding that the prosecution had proved its case beyond reasonable doubt; convicting him on the basis of insufficient, contradictory and inconsistent circumstantial evidence; while ignoring co-existing circumstances which had weakened the inference of guilt. 21.And quite inexplicably the Office of the Director of Public Prosecution which filed the appeal before the High Court on the basis that the prosecution had proved its case before the trial court beyond any reasonable doubt and successfully sought a substitution of the acquittal with a conviction has abandoned that position and now tells this Court under the cover of written submissions that the evidence tendered by the prosecution is unreliable and unsafe to found a conviction. 22.That being the case we find it necessary to isolate and distil the reasons for the divergent positions and establish whether the learned judge committed the several infractions of the law when it convicted the appellant as asserted before us. 23.On the principal count of rape the trial court found that the three ingredients namely; penetration; identity of the perpetrator, lack of consent of the complainant or consent obtained by means of force, threat or intimidation, had not been proved to the required standard. The trial court’s analysis and reasoning runs from paragraphs 28 to 32 of the judgment dated 14th April 2021. On the issue of penetration the magistrate considered the testimony of the complainant, the evidence of PW5 [Clinical officer] together with the P3 form and found that penetration was not proved beyond reasonable doubt for two reasons. In this regard the magistrate reckoned that what was proved by the evidence tendered by the prosecution is possibility of penetration as the complainant’s missing hymen could have been caused by factors other than insertion of the appellant’s penis into her vagina. 24.On the issue of the identity of the perpetrator the magistrate stated at par. 30 that even if he was to assume that the complainant had been penetrated, the prosecution had failed to prove that the culprit was the appellant. 25.On the issue of whether the appellant obtained consent by means of force, threats or intimidation the magistrate found that the complainant’s “narrative does not add up’’, and added that “she should have reported the matter to her relatives taking into account that she is not a minor’’ and the forensic expert told the court that all the nude photographs were forwarded from the complainant’s phone to the appellant’s phone and the appellant’s phone did not forward any nude photo to the complainant’s phone. 26.The learned magistrate further stated as follows at par. 29:“On whether the perpetrator was the accused person, we have the evidence of the complainant against that of the accused person. The complainant alleged that the accused took a picture to of her while naked and then used that nude picture to blackmail her to have sex with him. The accused person allegedly threatened to share the nude picture on social media unless she gave in to his demands. She alleged that the accused person was an assistant chief and therefore very powerful person in the society.However, she gave contradicting evidence on where the said picture was taken. At first she said it was taken at a certain house where the accused person took her. She then changed her story again and said it was at her sister’s house. It is worth noting that the first nude picture of the complainant was taken on 5th March, 2020 according to the forensic expert’s report [PW7]. The complainant did not raise the issue of rape until when her nude photograph was seen circulating on WhatsApp. At that time the complainant was under a lot of pressure from the family to explain how that picture leaked. The accused person denied on oath having sex with the complainant and sending the said picture. Looking at the pictures produced in court, I do not believe the complainant’s story that she was threatened to pose for those pictures. The complainant’s facial appearance on those pictures is not of a person who is under threat or coercion. The demeanor of the complainant was very poor. She gave contradicting evidence.’’ 27.The Magistrate dealt with the second count of wrongful distribution of obscene or intimate images at par. 33 and found that it had not been proved because the appellant’s phone had been examined by the forensic expert whose was categorical that no nude picture was ever forwarded from the appellant’s phone since he bought it and even though PW8 testified that the appellant sent a nude image to their WhatsApp group, the magistrate still doubted his evidence “in view of an expert’s evidence saying otherwise.” 28.We note from the record that the first appeal turned on the credibility of the evidence of the complainant PW1, the whatsapp administrator PW8 and the appellant DW1. After evaluating and reconsidering both the prosecution and the defence evidence tendered at the trial the first appellate court judge believed the evidence of the complainant : that the appellant had raped her using his position as chief and threats of distribution of her nude pictures. In this regard the judge states as follows in the impugned judgement:“(62)The salient features of the evidence of the complainant are that: The Respondent gave her water, she thereafter did not know what happened, The Respondent undressed her and took nude pictures and threatened to publish them if she did not do what he told he The Respondent then went ahead to rape her The Respondent threatened her with his position as a chief Since she feared his position and the pictures being circulated ,she gave in to the Respondent’s sexual demands The nude pictures were taken with her phone by the Respondent who then forwarded the same to his phone One time he took nude pictures with his phone The pictures were taken in three locations, the complainant’s sister’s house, a second house and a studio in Wajir. (63)In so many words ,the complainant was consistent when giving information to her mother, her sister, the police and during examination in chief ,cross examination and re-examination in stating that the Respondent threatened her with his position as chief and publishing of her nude pictures and to have sex with her . Secondly it is scientifically proven that one way a hymen is broken is through sex. The complainant said she was a virgin before the incident. This is however not in issue. Whether she was or not is immaterial as the ingredients necessary to prove the offence is whether sex occurred without consent or consent obtained by use of threat or force. (64)The court believes the testimony of the complainant that she was blackmailed by a person in authority and one who she respected and coerced into having sex with him. She consistently and clearly gave the same information of the nude pictures being taken by the Respondent, and threat made to her by the Respondent using his position leading to the encounter. This flow of information remained the same throughout such that the court does not doubt its veracity.’’ 29.The appellate court judge also believed the complainant’s evidence on the offence of distribution of obscene image by the appellant. At par. 67 the court highlights the complainant’s testimony that the pictures were taken when she did not know what was happening after drinking some water given to her by the appellant which would explain why she looked at ease, not threatened or fearful as the threat came to her after the pictures were taken. The first appellate court noted that the evidence of the complainant and that of PW8 was at variance with that of PW7, the expert witness and considered the evidence of PW1, PW2, PW4 and more particularly PW8 and PW9 and weighed it against that of PW7. At par. 73 the court formed the opinion that the evidence of the complainant, PW8 and PW9 was credible and consistent while the evidence of PW7 was inconclusive and therefore cannot be a reason to trash other evidence on record. Furthermore, PW8 and PW9 did not have any reason to lie against the respondent. The court found that the prosecution proved beyond reasonable doubt that the appellant was in possession of the obscene photographs and consequently set aside the trial court’s decision on both counts and substituted it with a conviction on both counts. 30.We observe that the first appellate court consistent with its duty re-evaluated, reconsidered and re-analysed the entire record of the evidence tendered before the trial court before coming up with its own conclusions of the facts and the law. 31.We have also considered the record and note that the immediate trigger of the complaint leading to the trial of appellant at the chief magistrate’s court was the posting of a nude photograph of KGH [PW1] to a family forum[fortunate youth forum]a clan WhatsApp group going by the name ADAN FAQA] administered by Bishar Gure [PW8]. PW8 testified that the group comprises of 30 people both men and women and that the nude picture was posted on 13th May 2020 by the appellant who is his cousin being the son of his uncle. He was offended by the post after he saw the picture at 8.00 pm on 13th May 2020. He telephoned the appellant and reprimanded him- that as an adult he should not have posted the picture. PW8 deleted the picture from his phone but not from the group. Other group members commented on the nude picture. Some said that the person who posted the nude picture was a government employee and he did not act responsibly in so doing. PW8 continued to say that the appellant requested him to delete the picture when they spoke on phone the following morning but PW8 told him it was too late and he should carry his own cross. He testified that the nude picture that the Appellant posted in the whatsapp group was of a girl who only had a headscarf with her mouth open and was not looking happy. 32.There is also on record the evidence of PW1, who testified that the nude picture was seen by among others a girl called Habon Abass Hajj a member of the Whatsapp group who showed it to other girls before the bad news about the circulation of her nude picture reached KGH. She was traumatized. She first fled from Wajir to Garissa and then to her relatives in Mombasa. When she arrived her relatives beat her up demanding to know why she was photographed naked. She then confided to her relatives among them her sister and mother that the nude picture had been taken by the appellant who used it to blackmail her and had sex with her against her will using his position as a chief. 33.On 22nd June 2020 KGH’s relative[Mohamed Abdullahi reported to PW9 No. 67172 CPL Ahmed Musa Hassan at Wajir Police station that her nude picture was posted to Adan Faqa whatsapp Group by the Assistant Chief of Arabqermsema location. The investigating officer PW9 summoned the appellant to his office where the latter admitted that he had the picture in his phone and had posted it to the WhatsApp group by mistake. PW9 stated that he booked the appellant in the OB and released him on a cash bond of ksh 10000 because the complainant was still in Mombasa. Two days later the complainant recorded her statement at Wajir police station and was taken to Wajir County Referral hospital where she was examined and treated. 34.According to PW7 NO. 108319 PC Bryson Wafula the first nude picture of [ KHG] was taken on 05/3 /2020 and was shared to the Appellant’s phone on the same day at 10. 09.06. Three of the images shared on that day were deleted from the complainant’s infinix mobile phone to the Appellant’s Techno Mobile phone and some three nude pictures were deleted. Another set of nude images were taken on 21/5/2020 at 1.49.45 and shared on the same day from the complainant’s infinix mobile phone to the Appellant’s Techno mobile phone through whatsapp and 10 images were deleted immediately after forwarding. There is thus clear evidence that the complainant’s nude pictures were on the Appellant’s phone including the picture that PW8 [Bishar Gure ] the Administrator of the family whatsapp group identified as the picture that the Appellant posted on 13th May,2020. PW7 says in his expert report that the Appellant did not share the nudes through whatsapp. His evidence is in the nature of opinion evidence, and being opinion evidence it cannot be taken as conclusive proof that the Appellant did not share the nude image to the whatsapp group in which PW8 is the group administrator. Its proper worth must be weighed against other evidence on the record. The High Court judge was not expected to treat the opinion evidence by PW7 as proof of the facts in issue. In our view that opinion cannot stand when weighed against the other evidence on record. Though the Appellant denied that he posted the picture to the whatsapp group before the trial court, there is on record the direct evidence of PW8 that it is the Appellant who posted the obscene picture in the whatsapp group and later asked PW8 to delete it. PW8 said that the Appellant was his cousin. There is no reason given by the Appellant why PW8 would fabricate and frame the Appellant in the grave matter of circulating PW1’s nude picture. The Appellant also informed PW9 that he had the photo in his phone and posted it by mistake when PW9 summoned him to the police station following the complaint being laid against him. PW9 was never cross-examined on that positive statement at all and we have no evidential basis on record to disbelieve PW9. The Appellant had the complainant’s nude pictures in his phone from 5th March,2020. 35.We also note that the complainant was the Appellant’s younger cousin entrusted to him by PW2 to look for a school for her and to take her to Frontier Secondary School. Other than that relationship the Appellant was a government official- Assistant Chief holding a position of responsibility and authority. If indeed the complainant a school girl sent her nude picture out of the blues to him as he stated before the trial court; why did he not bring the matter to the attention of PW1’s mother or the school authorities so that the complainant could be guided and counselled. Why retain the photos in his phone and keep mum about it? 36.It is also noteworthy that no evidence of a vendetta or any plausible explanation was proffered by Appellant why PW1 whom he had assisted to get admitted at Frontier Secondary School would suddenly turn round, name him as her violator and fabricate a story of rape under a threat of posting of her nude pictures or why her mother PW2 at whose request the Appellant assisted PW1 to get a school or indeed the rest of her relatives would support PW1 to falsely accuse the Appellant of such a grave offence as rape without cause. 37.We are satisfied that the appellant was correctly convicted and sentenced by the first appellate court. It is our finding that the appellant was convicted on sound reliable and compelling evidence. That evidence was neither insufficient nor inconsistent. The conviction is in our view safe and we uphold it. The contention by the appellant that the prosecution did not prove its case beyond reasonable doubt is not supported by the totality of the evidence on record. 38.Considering the gravity of the offence and the fact that the appellant used his authority as an assistant chief and abused the trust bestowed upon him the complainant’s mother to violate the complainant who is the appellant’s cousin, and the lasting trauma and enduring loss of dignity suffered by the complainant the sentence passed as well as the ksh 500000 compensation is in our view appropriate. It is not illegal,harsh or excessive as contended by the appellant in his grounds of appeal. Accordingly we uphold both conviction and sentence handed down by the first appellate court. 39.In the upshot, we find no merits in the appeal which we hereby dismiss. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.P. O. KIAGE....................................JUDGE OF APPEAL JAMILA MOHAMMED....................................JUDGE OF APPEAL MURUNGI B. KAIRARIA...................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR