https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11045

Katana v Republic (Criminal Appeal E052 of 2025) [2026] KEHC 11045 (KLR) (20 July 2026) (Judgment) Neutral citation: [2026] KEHC 11045 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E052 of 2025 FN Kyambia, J July 20, 2026 Between Baraka Karisa Katana Appellant and Republic Respondent (Being an Appeal against the Judgment of the Chief Magistrate’s Court at Malindi Hon. D Wasike Principal Magistrate delivered on 26th June, 2024 in S.O Case No. 51 of 2021) Judgment Background. 1.The appellant was charged with three counts before the Chief Magistrate’s Court at Malindi. 2.The first count is of rape contrary to Section 3(1)(a)(b)(3) of Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 24th day of June, 2021 at around 2330hrs in Mtsara wa Tsatsu location in Ganze Sub County within Kilifi County intentionally and unlawfully caused his penis to penetrate the vagina of AKK. 3.The second count is of grievous harm contrary to Section 234 of the Penal Code. The particulars of the offence were that on 24th day of June, 2021 at around 2330hrs in Mtsara wa Tsatsu location in Ganze Sub County within Kilifi County unlawfully did grievous harm to AKK. 4.The third count is of threatening to kill contrary to Section 223(1) of the Penal Code. The particulars of the offence were that on the 24th day of June, 2021 at around 2330hrs in Mtsara wa Tsatsu li=location in Ganze Sub County within Kilifi County without lawful excuse uttered words “Nitakuuwa na kisu kama utapiga nduru tena” threatening to kill AKK. 5.The appellant pleaded not guilty to the charges when he was arraigned in court. The prosecution called five witnesses to prove the charges against the appellant. when placed on his defence the appellant gave unsworn testimony and called one witness. In a judgment delivered on 26th June, 2024 the trial magistrate found the appellant guilty in respect of all the charges and accordingly convicted. Subsequently on 10th July, 2024 the trial magistrate sentenced the appellant to serve 25 years in respect of count one, 10 years in respect of count two and 2 years in respect of count three. The sentence was ordered to run concurrently from 26th June, 2024. 6.The appellant aggrieved by the conviction and sentence preferred this appeal. In an amended ground of appeal, the appellant raised the following grounds:1.That the learned trial magistrate erred in law and fact by holding that the appellant was properly identified by the complainant without exercising caution to rule out possibility of mistaken identity;2.That the learned trial magistrate erred in law and fact by convicting the appellant in reliance on the medical evidence which is contradicted, scant and not sufficient to sustain conviction;3.That the learned trial magistrate erred in law and fact by failing to adequately consider the appellant’s defence of alibi; and4.That the learned trial magistrate erred in law and fact by imposing a harsh and excessive sentence. The Prosecution case. 7.PW1 a secretary at [Particulars Withheld] Secondary School testified that on 24th June, 2021 she was in her house at around 11:30pm when she heard sound from her door. She woke up and proceeded to the door. She found the door already opened and there was a man at the door. The man held her dress, hit her with a stick and threatened to stab her. He held her left hand and pulled her to a shamba next to her house and pushed her on the ground and raped her. He tore her pant and used to clean himself. The man left threatening that he will stab her if he reported the matter. She got up and proceeded to the area chief’s house where she reported the matter. She also told her husband and they proceeded to Bamba police station where she made a report. She was advised to go to hospital for treatment. She later recorded her statement at the police station. She said she knew the man who attacked her prior to the incident. She added that there was security light outside and moonlight. She said she was injured on the left hand and the legs. She said she raised alarm but the man threatened to stab her. It was her evidence before the trial court that she took her pant to the police station which she could not remember the colour. She said there was nobody in the house. She said she knew the accused as village boy and she identified him in an identification parade. In cross-examination she maintained that she knew the appellant. 8.PW2 KK testified that the complainant was his wife. He also stated that he knew the appellant who was a neighbour staying about a quarter kilometer from his home. He said on 24th June, 2021 around 11pm he was called by the complainant his second wife and told him that she had been raped. He proceeded to the scene and found neighbours had gathered at the scene. His wife explained to her what had happened to her. They proceeded to the police station where they made a report and later went to hospital. He said the complainant had injuries on her hand, back and legs. In cross-examination he said that he knew the appellant because he used to pass by the road near his home. 9.PW3 Bidali Omar a Government Chemist Analyst based at Mombasa testified that he received five exhibits from PC Muraya on 1st July, 2021 namely a pant in a brown envelope marked A, a dress in a blue paper bag marked B, a jumper in white envelope marked C, buccal swab of AKK (complainant) and buccal swab of Baraka Karisa Katana (the appellant). he was required to carry out DNA test on the said exhibits. Upon analysis he concluded that the dress generated a male DNA profile that mixed alleles originated from buccal swab of Alice Kaingu (complainant) and buccal swab of Baraka Karisa Katana. The pant also generated female DNA profile that matched the DNA profile from the buccal swab of Alice Kaingu (complainant). He also found that the jumper generated a male DNA profile that matched with DNA profile generated from buccal swab of Baraka Karisa Katana. 10.The DNA report was produced in court as exhibit. 11.PW4 PC Brian Mutsoli investigated the matter. He testified that on 25th June, 2021 at around 1am a report was made at the station by the complainant who was accompanied by her husband. A P3 Form was issued. He said the complainant told him that she was able to identify the appellant as the assailant because there were security lights and full moon. He also told the court that the complainant told him that he knew the appellant voice and gave a description of the clothes the appellant was wearing. The report was that the appellant attacked the complainant and dragged her to maize plantation and raped her and threatened her. later on, 27th June,2021 the appellant was arrested at Bamba market by members of the public and taken to the station while wearing a black jumper as described by the complainant. He prepared an exhibit memo and forwarded the pant, jumper and leso like dress to Government Chemist. Later a P3 Form and PRC Form were filled. An identification parade was conducted with 12 members in the parade and the complainant identified the appellant three times. He then charged the appellant. In cross-examination he said he visited the scene which was about 2 kilometers from the appellant’s home. He also said the footprints from the scene led to the appellant’s home. 12.PW5 Clinica officer attached at Mariakani Sub County Hospital produced the P3 Form and PRC Form which were filled at the facility. He testified that the complainant was treated at Bamba hospital on allegations of physical assault and rape by a person known to her. On examination she had pain on the neck and could not turn. Lower belly was painful and she had fracture of distal left radius and fracture of left metatarsal bone. On vaginal examination the labia were swollen and the hymen was broken. No discharge was noted at the time of examination. He produced as exhibit the P3 Form, medical notes, PRC Form and X-ray reports. The Defence case. 13.The appellant in his unsworn defence told the court that on 24th June, 2021 he was at Mitsitini where he was working painting Mitsitini primary school. He said he was there for three days. He returned home on 27th June, 2021. The following day he was told by his mother that the complainant claimed that he had been defiled. He said on 28th June, 2021 when he went to Bamba town he was arrested by some youth who were in the company of the complainant’s husband. He was not told the reason for the arrest. He was then taken to the police station. He denied that he was wearing a black jumper. He further stated that he had a girlfriend by the name Kasombe whom they had disagreed. It is after the disagreement that that he heard about the allegations that the complainant had been defiled. He termed the charges as fabrication because he had disagreed with the lady. 14.The appellant witness Juma Mjomba alias Zion said he lives in Bamba and he was a painter. He said the appellant was his casual laborer. He said that on 24th June, 2026 he was at Mitsini primary school with the appellant where they were painting. He said they finished the work on 25th June, 2021 and they left to Bamba and the appellant went his way. He said the appellant could not have committed the offence on 24th June, 2021 as alleged as on the material date he was with him. In cross-examination he said he did not know where the alleged crime happened. He said from where they were working to Mtara wa Tsatsu is about 2-3km and one can walk to and from. It was his assertion that the appellant could not have committed the offence. Appellant’s Submissions. 15.The appellant submitted that the trial court fell in error in finding that he was positively identified as the assailant. He argued that the incident as per the evidence adduced before the court occurred at night under stressful circumstances and chances of mistaken identity could not be ruled out. He relied on several decisions among them the cases of Gikonyo Karume & Another vs R (1980) KLR, Wamunga vs R (1989) KLR and Nzaro vs R (1991) KAR to support his submissions on identification. He further submitted that the trial court should not have relied on the identification parade as the complainant had already stated in her evidence that she knew the appellant before. Thus, the identification parade was worthless in the circumstances. 16.The appellant further faulted the trial court for relying on the medical evidence and particularly the DNA test conducted by PW3. He submitted that some of the exhibits forwarded for DNA test were not explained how they were retrieved particularly the dress as the complainant did not mention the same in her testimony. He also faulted the trial court for relying on the medical evidence as PC Muraya who is said to have forwarded the exhibit to Government Chemist was never called to testify to explain how he gathered the exhibits. He further stated that the jumper which was forwarded to the Government Chemist and which belonged to him and which was subjected to DNA test did not have any incriminating evidence linking him with the offence. The appellant further faulted the trial court for relying on contradictory evidence especially on how the exhibits were gathered and forwarded to Government Chemist. 17.The appellant also faulted the trial court for not considering his defence of alibi and meting harsh sentence. Respondent’s submissions. 18.The respondent maintained that the prosecution proved the charges as required. The respondent argued the there were inconsistencies and contradictions as alleged by the appellant. It is submitted that all the ingredients of the offence the appellant was charged with were proved beyond reasonable doubt. The respondent supported the finding of the trial court. Analysis and determination. 19.This is a first appeal to the High Court. As expected I have examined the lower court record, re-evaluated the facts and drawn my own independent conclusions. I have done so not overlooking the fact that I did not have the advantage of hearing and seeing the witnesses testify before the trial court. (See Okeno vs Republic (1972) E.A 32, Njoroge vs Republic (1987) KLR 19, Felix Kanda vs Republic Eldoret Criminal Appeal No. 177 of 2011 (2013) KLR). 20.Further I am aware that the legal and evidential burden of proof in criminal cases remains with the prosecution throughout to prove the guilty of an accused person beyond reasonable doubt. Such burden does not shift to the accused save for exceptional circumstances expressly provided for by the law. This position has been restated numerously. For instance, in the case of Stephen Nguli Mulili vs Republic (2014) e KLR the court cited the locus classicus case of Woolmington vs DPP (1935) UKHL 1 on the duty of the prosecution to prove its case which remains the position in Kenya. 21.The appellant was charged with rape contrary to Section 3 of the Sexual Offences Act, grievous harm and threatening to kill contrary to Sections 234 and 223 respectively of the Penal Code. The trial court after considering the evidence adduced and the appellant defence found that the charges were proved as required and convicted the appellant. The appellant in his submissions faulted the trial court for relying on insufficient identification and contradictory evidence. The determination of this appeal is anchored on those two grounds. 22.From the evidence adduced by the prosecution, it is clear that the evidence of identification of the appellant as the perpetrator is that of PW1. It was that she knew the appellant and there were security light and moonlight. She also picked him in an identification parade. It is also not disputed that the offence was committed at night. This is single witness evidence of identification of the appellant as the perpetrator. It is trite that where conviction of an offender rests entirely or substantially on identification, the court must exercise extreme caution before convicting. In the case of Wamunga vs Republic (1989) KLR 424 the court held: 23.Where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely be made the basis of conviction.” 24.Further in the case of R vs Turnbull (1976) 3 ALL ER the Court laid down the guidelines which the court must consider before convicting on identification evidence. The court must consider the lighting, distance, duration of observance, any obstruction and the acquaintance of the person identifying and the person identified. 25.The trial court in making a finding that the appellant was positively identified, held that the appellant was known to the complainant, complainant identified her by his voice and also picked him in an identification parade. The trial court further found that the evidence of PW1 was corroborated by the DNA evidence adduced by PW3. 26.In the instant case, PW1 said he knew the appellant and that there were security light and moonlight. However, PW1 did not tell the court the source of the security lights. It is also the evidence of the complainant that she was hit and threatened. It can be ruled out that the complainant in the circumstances may have been obstructed in observance of the appellant as the assailant. More importantly, the complainant did not give description of the person who attacked her save by saying that she knew the appellant. It is curious why the trial court made a finding that the appellant was arrested wearing the jumper which the complainant had described when the evidence of the complainant is silent on the description of the person who attacked her. Much as this may have been evidence of recognition which may said to be more reliable, I find that the trial court did not caution herself and consider the circumstances prevailing. If indeed the complainant knew the appellant as the person who attacked her, why would there be need of identification parade. The entire identification evidence in the circumstances was not free from error and the trial court fell in error in concluding that the appellant was positively identified. 27.The trial court in relying on the identification evidence of the appellant, held that the same was corroborated by the DNA evidence of PW3 who said he received exhibits from the P.C Muraya for DNA profiling. All the exhibits which were taken for DNA profiling were not mentioned by the complainant as some of the items he took to the police station at the time of making the report. PW4 in his evidence did not give an explanation how the exhibits he took for DNA profiling were brought to him. As I have said the complainant did not state in her evidence that she took any exhibits to the police. This raises a question of the chain of custody of the exhibits. There is nothing from the evidence adduced to verify that the exhibits PW4 took for DNA profiling were really seized at the scene. There is nothing to suggest that the same were collected from the complainant. The manner in which these exhibits were handled breaks the chain of custody. The DNA evidence which the trial court relied on to find corroboration was not credible and can only be given less probative value in the circumstances of this case. 28.Further to the forgoing, the trial court in rejecting the appellant’s defence of alibi, held that the appellant did not call anyone from Mitsizini primary school where he said he was working on the material date. The trial court did not only fell in error in shifting the burden of proof to the appellant but failed to appreciate that the appellant called a witness to support his defence of alibi. 29.As this appeal centered on whether the appellant was properly identified and whether the DNA evidence corroborated the complainant evidence, having found that the identification evidence was not reliable and that the DNA evidence was too weak in view of the failure by the prosecution to explain how the exhibits the subject of DNA were collected from the complainant, it is my finding that the conviction of the appellant was not safe and the same cannot be allowed to stand. 30.Consequently, I find the appeal merited and allow the same and the conviction and the sentence in respect of all counts is hereby set aside and the appellant is acquitted. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY OF JULY, 2026FRANCIS N. KYAMBIAJUDGEIn the presence ofAppellant virtuallyMs. Mutua VirtuallyMs. Otwo Court Assistant.