https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6457

Kithi v Republic (Criminal Appeal E001 of 2024) [2026] KEHC 6457 (KLR) (8 May 2026) (Judgment) Neutral citation: [2026] KEHC 6457 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E001 of 2024 JN Njagi, J May 8, 2026 Between Dennis Sulubu Kithi Appellant and Republic Respondent (Being an appeal from the original conviction and sentence by Hon. J.N. Mwaniki, Chief Magistrate, in Malindi Chief Magistrate`s Court Sexual Offence Case No. E72 of 2023 delivered on 29/12/2023) Judgment 1.The Appellant was convicted for the offence of rape contrary to Section 3(1)(a)(b)(c) as read with Section 3(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 19th day of June, 2023 at in Malindi sub county within Kilifi County, he intentionally and unlawfully caused his penis to penetrate the vagina of K.N.M. (herein referred to as the complainant) without her consent. 2.The appellant was sentenced to serve seven years imprisonment. He was aggrieved by the conviction and the sentence and filed the instant appeal. The grounds of appeal are that: -1.The learned trial magistrate erred in law and fact by failing to consider that the prosecution failed to prove their case beyond reasonable doubt.2.The learned trial magistrate erred in law and fact by failing to properly re-evaluate the entire evidence adduced by the prosecution which evidence was unsafe to sustain a conviction.3.The learned trial magistrate erred in law and fact by failing to consider the sharp constrictions and invariances on the evidence of the prosecution witnesses.4.The learned trial magistrate erred in law and fact by failing to consider the Appellant’s defense. Case for prosecution 3.The prosecution called 4 witnesses in the case. It was the evidence of the complainant that she was on the morning of the material day heading to her shamba when she met with the Appellant. He asked her whether she was headed to her shamba. She did not answer her as she did not know him before. She continued with her journey. She got to her shamba and started working. She then rose up and saw the Appellant close to her. He was armed with a panga and was only in his underpants. He asked her what she was doing in his shamba. He took her panga that was lying behind her and said that he wanted to have sex with her. She declined. He held her and started to strangle her by the neck. He removed her dress and underpants and raped her while she was bending. He then asked her whether she knew his home and whether she would report the incident to anybody. She answered in the negative. He asked her whether she would be in the shamba on the following day. She answered in the affirmative and he said that he would come and pay her Ksh.1000/=. He then left. 4.It was further evidence of the complainant that she went too the home of a neighbour called Kyalo and reported the incident to him. She went back with him to her shamba. It had rained and they followed the footsteps of the person. They led him to a certain home where they found the Appellant and other people. She identified the Appellant. Kyalo identified him by name Dennis. He attempted to run away but then stopped. He knelt down and sought for forgiveness from the complainant. The complainant reported to the police at Gede and went to hospital. 5.Jackson Ruwa PW2 testified that he has leased a shamba to the complainant. That on the material day at around 10 am he was at his home when the complainant went there crying. She reported to him that she had been raped by a certain person. He went with her back to her shamba. It had rained and they followed the footsteps of the person. They led them to a home. They found the Appellant at the home. When he saw them, he ran and knelt down and sought for forgiveness from the complainant. 6.It was the evidence of PW2 that he knew the Appellant before. That he is called Dennis. That the home where they found him belongs to his family. 7.It was the evidence of PC Omondi PW3 that he on 26/6/2023 took over investigations of the case from another police officer. Statements in the case had ben recorded. The Appellant had been arrested and taken to the police station by members of the public. 8.A clinical officer at Malindi sub county hospital PW4 testified that the complainant visited their hospital on 19/6/2023 with a history of rape. That she was examined and spermatozoa were noted in her vaginal canal. It was concluded that the complainant had engaged in penetrative sexual intercourse. He PW4 completed her P3 form on 23/6/2023. He produced the P3 form and her treatment notes as exhibits, P.Exh.1 and 2 respectively. Defence Case 9.When placed to his defence, the Appellant stated in a sworn statement that the complainant was his neighbour. That the complainant had let her goats to enter into his shamba. That he hit one of them and injured its leg. The complainant vowed that she will make him suffer. That on the 19/6/2020 he was at the ocean. He returned home on 20/6/2020 and he was told that he was required at the police station. He went there and he was arrested. He was arraigned in court. He denied that he raped the complainant. He said that he had quarreled with PW2 over an issue to do with money. 10.The appeal was canvassed by way of written submissions. Submissions 11.The Appellant submitted that the clinical officer who examined the complainant noted that she had a normal genitalia. That no spermatozoa were noted but that the clinical officer formed the opinion that there was evidence of penetrative sexual intercourse. The appellant submitted that the finding of the clinical officer had no basis as the medical adduced exonerated him of the offence. 12.The Applicant submitted that the sentence of 10 years imposed on him was excessive as considered in the mitigation by the Appellant and the Principles of Sentencing. 13.The Respondent on the other hand submitted that the ingredients of the offence of rape are proof of penetration on the complainant and lack of consent by the complainant. They on the ingredients of the offence as set out is section 3(a) (b) and (c) of the Sexual Offences Act which they supported with the holding in the case of Republic -v- Oyier (1985) KLR 353 where it was held that:The learned magistrate had the correct appreciation of the mens rea in rape. It is primarily an intention and not state of mind. Thus the mental element is to have intercourse without consent, or not caring whether the woman consented or not: DPP v Morgan (1975) 61 Cr Appl. R 136 HL The prosecution must prove either that the complainant physically resisted, or, if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist; Archbold Criminal Pleading Evidence and Practice 40th Edn pp 1411 – 1412 paragraph 2881 and R v Harwood K (1966) 50 CR App R 56. So if a woman yields through fear of death or through duress, it is rape and it is no excuse that the woman consented first, if the offence was afterwards committed by force or against her will; nor is it any excuse that she consented after the fact. 14.It was submitted that lack of consent in the case was proved by the evidence of the complainant that the Appellant strangled her by the neck when she declined to have sex with him. That the Appellant was holding a panga at her when he raped her proved lack of consent. 15.It was submitted that PW2 had no reason to lie against the Appellant. That the evidence of the complainant was corroborated by the evidence of the clinical officer who examined her and noted presence of spermatozoa in her vaginal canal. It was submitted that the evidence presented by the prosecution witnesses was sufficient to support the offence levied against the Appellant. The Respondent urged the court to uphold the conviction and the sentence. Analysis and Determination 16.This being a first appeal, the duty of the court is to analyze and re-examine afresh the evidence adduced before the lower court and drawn its own conclusions, while at the same time bearing in mind that the trial court had the advantage of seeing and hearing the witnesses testify was in better position to assess their demeanour, see Okeno vs Republic [1972] EA 32. 17.Section 3 of the Sexual Offences Act provides that:(1)A person commits the offence termed rape if—(a)he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;(b)the other person does not consent to the penetration; or(c)the consent is obtained by force or by means of threats or intimidation of any kind.(2)In this section the term "intentionally and unlawfully" has the meaning assigned to it in section 43 of this Act.(3)A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life. 18.The ingredients of the offence of rape are proof of penetration on the victim and lack of consent by the victim. It is trite that the offence of rape can be proved by way of oral evidence or circumstantial evidence which can be corroborated by medical. In Kassim Ali v Republic (2021) eKLR the Court of Appeal held that:“….the fact of rape can be proved by oral evidence of a victim of rape or by circumstantial evidence” 19.The trial court found that the Appellant had sex intercourse with the complainant that was obtained by threats and intimidation. 20.On my own analysis of the evidence there is no doubt that the charge of rape was proved against the appellant beyond reasonable doubt. The complainant in the first place did not know the appellant before. There was no reason for her to fabricate such serious allegations against him. The appellant’s defence that he had a grudge with the complainant after he injured her goat after it trespassed into his shamba had no truth in it. The Appellant never raised the issue when he cross-examined the complainant in court. He when cross-examining the complainant alleged that the sex was consensual. How then did the sex turn out to have been a fabrication when he put questions to the complainant during cross-examination wherein he was alleging that the sex was with the consent of the complainant, an issue that the complainant flatly denied? How come that he did not put any questions to the complainant about her goats trespassing into his shamba and him injuring one of her goats? 21.The Appellant said that he had a grudge with PW2 because he had a disagreement with him over money. He similarly did not bring up the issue when he cross-examined PW2 in court. All these allegations were raised by the Appellant at the very tail end of the case and can only mean that they were a fabrication and an afterthought. I so hold. 22.The incident occurred during the day. The complainant had sufficient time to see the Appellant when she met him while she was on her way to the shamba and when he found her in the shamba. She is the one who identified him when they found him at a nearby home from the scene. PW2 corroborated the evidence of the complainant that she identified the Appellant when they found him at the home. The evidence of the complainant that the Appellant knelt down and sought for forgiveness was corroborated by PW2. The Appellant was identified as the perpetrator. The oral evidence of the complainant was sufficient to prove the offence. 23.The evidence placed before the trial court proved that Appellant penetrated the complainant into her vagina by use of force and threatening her with a panga. Penetration was proved by the oral evidence of the complainant. Lack of consent was therefore proved. Penetration was proved by the oral evidence of the complainant which was credible and cogent. The Appellant`s defence did not dislodge the overwhelming evidence adduced by the prosecution witnesses. The conviction is thereby upheld. 24.The Appellant argued that the sentence imposed on him of 10 years was excessive. It has to be noted that the offence carries a maximum sentence of life imprisonment. The complainant was a married woman with children. The sentence meted on the Appellant was fair in all the circumstances of the case. There is no reason for this court to interfere with it. 25.The upshot is that I do not find any merit in the appeal and the same is dismissed. DELIVERED, DATED AND SIGNED AT GARSEN THIS 8TH DAY OF MAY 2026.J. N. NJAGIJUDGEIn the presence of:Mr. Oluoch HB for Miss Ngina Mutua for RespondentAppellant – present virtually at G.K. Prison VoiCourt Assistant – Rahma