https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7315

Gitari v Republic (Criminal Appeal E007 of 2024) [2026] KEHC 7315 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7315 (KLR) Republic of Kenya In the High Court at Meru Criminal Appeal E007 of 2024 SM Githinji, J May 28, 2026 Between Patrick Mutwiri Gitari Appellant and Republic Respondent Judgment 1.Patrick Mutwiri Gitari, the Appellant herein, was charged in the Lower Court with a main Count of Rape, contrary to Section 3(1)(a) as read with Section 3(3) of the Sexual Offences Act No. 3 of 2006. 2.The particulars of this offence are that on the 19th day of August 2021 at [Particulars Withheld] Village, Gikui location, Imenti South Sub-County within Meru County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of RK, without her consent. 3.The Appellant also faced an alternative Count of committing an indecent act with an adult, contrary to Section 11A of the Sexual Offences Act No. 3 of 2006. 4.The particulars hereof being that on the 19th day of August, 2021 at around 16:00 hours at [Particulars Withheld] village, Gikui Location, Imenti South Sub-County within Meru County, the Appellant intentionally touched the vagina of RK, an adult, with his hands, against her will. 5.The prosecution case is that the victim herein, who offered her evidence as PW-1 was at the time of the alleged offence, on 19th August, 2021 aged 18 years. She’s also said to be Mentally Challenged. She lives in [Particulars Withheld]. On the material date she was alone at home as her two brothers, PW-2 and PW-3 were in school. 6.The Appellant herein, whom she referred to as Kiroto visited her at about 4.00 Pm. He had a panga, knife and a file. He placed the panga on her neck and threatened to cut her if she did not comply with his demands. He ordered her to remove her clothes and lie on the bed. Out of fear she complied. He then inserted his penis into her vagina. 7.Her two brothers arrived home from school. PW-3 heard some unusual movements in his sister’s bedroom. He decided to check what was happening therein. Upon opening the door, he found the Appellant lying on top of the victim. Both of them were naked. The Appellant warned him that if he says anything he’ll kill him. He had a panga, knife and a file. PW-3 made out that they were having sex. 8.PW-3 upon witnessing what was happening to his sister, informed his younger brother (PW-2) about it, and sent him to call a neighbour known as Muguna. PW-2 did as told but Muguna declined to assist. PW-2 proceeded to another neighbour called Karwitha, but she was not at home. He went further and called Mugendi, also a neighbour. 9.Peter Mugendi (PW-4) went together with PW-2 to the scene. He got into the house and found the Appellant herein and the victim lying on the floor while naked. There was a panga and a file on the ground. The Appellant had a knife in hand. When the Appellant saw PW-4 he rose and picked the panga. He pointed at PW-4 with it. PW-4 sensed danger, retreated, and went to call other neighbours for help. He called John Kinyua and Amos Mutura. The three went to call the “area manager,” Elias Meeme. They went to the scene and found the Appellant leaving the scene. They called the area Chief, David Mwenda (PW-5). He got to the scene and advised the victim to report to the police. 10.The matter was reported at Igoji Police Station. The following day, on 20/8/2021 PW-5 managed to trace the Appellant. He was arrested and taken to Igoji Police Station. 11.PW-6 Investigated the case. She took the victim to Kanyekine Sub-County Hospital for examination and treatment. PW-7 examined her at the said hospital. 12.Upon examination PW-7 found that she had a whitish PV discharge (normal vaginal discharge). External genitalia was normal, hymen broken and there was tenderness on the inner thighs. 13.Urinalysis revealed Leukocytes (pyuria) which is a Urinary Tract Infection (UTI). 14.The Clinical Officer filled her P-3 and PRC Form and concluded that;“The thighs having tenderness and hymen being broken is suggestive of a forceful sexual intercourse despite her being an adult.” 15.After investigations were concluded the Appellant was charged with the offences carried in the charge sheet. 16.The Appellant gave sworn testimony in his defence and called no witness. His case is that he lives in Igoji and he is a broker. Prior to the material day he had been sold bananas by the victim. On the material day he went with his wife to harvest the bananas. When they arrived they found that they had been harvested. He quarreled with the complainant over that and slapped her. The complainant threated him, telling him that he’ll face it. After 3 days he was arrested. He further alleged that he was schooling with the victim before and there are days he had seduced her. 17.The trial Court evaluated the evidence and found the Appellant guilty of the offence in the main count. He was convicted of it and sentenced to serve 15 years imprisonment. 18.Dissatisfied with the said conviction and sentence, the Appellant prefered an appeal before this Court on the followings grounds:-1.That, the learned trial Magistrate erred in matters of law and facts by convicting and sentencing the Appellant to serve 15 years imprisonment without noting that the charge sheet is defective.2.That, the learned trial Magistrate erred in matters of law and facts by failing to note that the complainant was of unsound mind and her evidence was not properly received.3.That, the learned trial Magistrate erred in matters of law and facts by failing to note that the prosecution witnesses gave absurd and contradictory testimonies.4.That, the learned trial Magistrate erred in matters of law and facts by failing to note that the evidence of identification in this case was not fully analyzed by the trial Court.5.That, the learned trial Magistrate erred in matters of law and facts when he failed to note that the evidence of penetration was not proved.6.That, the learned trial Magistrate erred in law and facts by failing to note that the evidence of broken hymen is not proof of defilement.7.That, the learned trial Magistrate failed to note that the prosecution case was not properly investigated by Investigation Officer. 19.The Respondent opposed the Appeal, and the same was canvassed by way of Written submissions. 20.I have as the first Appellate Court re-evaluated the charges, evidence on record, Judgment of the Lower Court, sentence meted, grounds of the Appeal, and considered the submissions filed. 21.Section 3(1) of the Sexual Offences Act reveals that, 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; orc.The consent is obtained by force or by means of threats or intimidation of any kind. 22.The issue for determination is whether the prosecution proved the offence of rape beyond reasonable doubt, by establishing all the essential ingredients under Section 3(1) of the Sexual Offences Act as shown above. 23.Penetration is the primary ingredient of the offence and is defined under Section 2 of the Sexual Offences Act as partial or complete insertion of the genital organs of one person to those of another. 24.Upon evaluation of the evidence of PW-1, she stated firmly that the Appellant ordered her to remove her clothes and lie on the bed. He then inserted his penis into her vagina. This evidence is supported by the evidence of PW-3 and PW-4 who found them in the act. The evidence of PW-7, the Clinical Officer who examined the victim, reveals that there was penetration. I am therefore satisfied that penetration was proved beyond reasonable doubt. 25.The second ingredient is that the act must be without the consent of the victim. 26.Victim’s evidence shows that she was threatened and forced into the act. The Appellant was armed with a panga, a knife and had a file. He threatened to cut her if she did not comply to his demands. When PW-3 got to the scene he was also threatened as well as PW-4. The two witnesses corroborates the victim’s evidence that the Appellant was armed with a panga and a knife. The revealed circumstances negate any chance that there was consent. I accordingly find that the victim did not consent to the act. 27.The final ingredient is proof that the Appellant was positively identified as the perpetrator. 28.PW-1 identified him during the act. PW-3 and 4 recognized him as he’s their neighbour. It was during the day and the 3 witnesses could not have made a mistake of him. The evidence is mostly of recognition rather than of identification which’s more reliable. He could not have been mistaken for the real culprit. I find that he was the culprit. 29.It’s not entirely irrelevant to State that failure by the prosecution to prove the precise age of the victim does not vitiate a charge of rape so long as the statutory elements are otherwise firmly established. The age is not an ingredient for the offence. 30.Equally, the law does not impose as a prerequisite that the complainant be proven to be of sound mind for the offence of rape to stand. What is central is whether there was consent, or the legal capacity to consent as contemplated under Sexual Offences Act. 31.The sentence of 15 years imprisonment is lawful under Section 3(3) of the Sexual Offence Act and there is no basis for interference. 32.The bottom line is that the appeal is in want of merit and is hereby dismissed in its entirety. DATED AND DELIVERED AT MERU THIS 28TH DAY OF MAY, 2026.S.M. GITHINJI –JUDGE28/5/2026In the presence of:-Appellant present at Meru Main Prison