https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8549

Halake v Republic (Criminal Appeal E025 of 2025) [2026] KEHC 8549 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8549 (KLR) Republic of Kenya In the High Court at Marsabit Criminal Appeal E025 of 2025 FR Olel, J June 18, 2026 Between Ibrahim Adan Halake Appellant and Republic Respondent Judgment A. Introduction 1.The Appellant was charged with the offence of rape contrary to Section 3(1)(a) &(b) of the sexual offences Act No 3 of 2006. The particulars were that on the 12th day of February 2024 at [Particulars Withheld] within Wajir county intentionally and unlawfully caused his penis to penetrate the vagina of SMA, without her consent. 2.During trial the prosecution called five witnesses who testified in support of their case. The appellant was placed on his defence and gave sworn evidence in support of his case. The trial magistrate did consider all the evidence adduced and found the Appellant guilty of the offence of rape and proceeded to convict him under section 215 of the Criminal Procedure Code. He was thereafter sentenced to serve ten (10) years imprisonment. 3.The Appellant, being dissatisfied by the conviction and sentence, filed his Amended petition of appeal dated 04.03.2026 and raised the following grounds of appeal.a.That the sentence of ten years imprisonment was manifestly harsh, considering the circumstances of the offence and the fact that the appellant was unrepresented and was not informed promptly of his right to legal representation and to have an advocate assigned to him at the state expense.b.That the learned trial magistrate erred in law and fact in convicting and sentencing him based solely on the evidence of PW1, the victim and PW3 the clinical officer, which did not prove the offence beyond reasonable doubt.c.That the learned Trial Magistrate still erred in law and fact by relying on prosecution evidence that was inconsistent uncorroborated and unreliable.d.That the learned trial Magistrate erred in failing to consider the appellants credible defence of alibi, given under oath and supported by evidence that he had been framed up and claimed that, the police needed money which the appellant could not raise. 4.The appellant thus urged the court to find that this Appeal has merit and that the same be allowed. B. Prosecution Case 5.PW1 SMA testified that she was a resident of Bute and on 12.02.2024, had gone to Bute town to run errands. On her way back, she met the appellant, who was driving his TukTuk and offered to give her a lift. Upon reaching at a place known called H, he stopped, took her to the bush and forcefully raped, which incident occurred at about 4.00pm. She further explained that she did attempt to resist the unwarranted attack, but the appellant forcefully removed her dera and inserted his penis inside her vagina, and only let her go after ejaculating inside her. Later when she reached home, she took a bath and on the following day reported to the chief, what had occurred and the matter was referred to Bute police station for further investigations. 6.She was taken to the hospital, where she was examined and issued with treatment notes and the P3 form. She further confirmed that she knew the accused as he was their neighbour at home and was a person she had known since childhood. Under cross examination she confirmed that the incident occurred at about 4.00pm and reaffirmed that the incident had occurred as previously explained. 7.PW2 Adan Ahmed confirmed that he was the area chief-Bute and recalled that on 12.02.2024 he had been called at about 7.30pm by a random number and was informed of the incident where the accused had been seen carrying PW1 in his Tuk Tuk headed towards [Particulars Withheld], and that the said Tuk Tuk had stopped near a bush at Wataraya area. He took his motor cycle and headed to the said area and upon reaching the said place found the Tuk Tuk parked by the road side with no one inside. He knew that the said Tuk Tuk, belonged to the appellant as he had seen him driving it for over one year, and thus knew it belonged to him. He waited by the said Tuk Tuk for about 30 mins and then decided to leave since nobody appeared. 8.On his way back home, he found the complainant walking towards [Particulars Withheld] and stopped to ask her where she was coming from since she had a child and it was dark, but PW1 did not disclose much and he decided to leave her alone and proceeded back to his house. On 14.02.2024, he got information that a complaint had been filed at Bute police station and also went and recorded his statement. He further testified that the appellant was a nuisance and a troublesome person within the said village and many incidents of threats had been reported against him at his office. On cross examination he confirmed that he did not witness the rape incident, but had been told by an informer that the appellant had been seen taking PW1 to the bush and had raped her. 9.PW3 Ahmed Abdullahi Abdi testified that he was a boda boda rider and recalled that on 12.02.2024, while riding his motorbike at around wataraya area, he met with the appellant carrying PW1 in his Tuk Tuk and they were persons he knew since they were from the same village. He saw the appellant branch off into the bush as he passed them, but did not know what they were up to and his client called and informed the area chief of what they had witnessed. Under reexamination he clarified that though the appellant had once taken him to the police station, together with his other friends, claiming that they had assaulted him, they had subsequently been released and his evidence was truthful and he did not maintain any grudge against the Appellant. 10.PW4 Ip Fredrick Musau (OC-Crime) of Bute Police station confirmed that on 14.02.2024 at 1600hrs, a report was made at Bute police station by the complainant, that she had been raped by the appellant on 12.02.2204 at about 1600hrs. She explained that on the material day, she was from the market, and while enroute back, got a lift from the appellant, who was driving his Tuk Tuk. At a place known as Wataraya, which was about 3km from Bute, the appellant did drive off the main road and drove to a deserted place, but bushy area near Wataraya dam, forcefully undressed the complainant and proceeded to rape her, which incident took about 5 minutes before he ejaculated and escaped from the scene towards [Particulars Withheld]. 11.The appellant dejected and helpless, remained at the scene, and later at about 1900hrs proceeded to her home on foot. The matter was later reported to PW3 and the case was then forwarded to them for proper investigations. They did record PW1’s statement and referred her Bute sub county hospital, where she was treated and the P3 form filled. The appellant was later arrested in April 2024 and was arraigned before the trial court. 12.Under cross examination, PW4 confirmed that the incident occurred at about 1900hrs on 12.02.2024, but was reported to them on 14.02.2024, because PW1 had feared telling her husband, since she was afraid that she would be divorced. He confirmed that other witnesses had seen the tuk tuk by the bush, but nobody saw the incident. He further confirmed that he had arrested the appellant on 19.02.2024 and proceeded to release him on cash bail, and after getting approval from the ODPP, caused him to be arraigned in court in April 2024. Nothing was recovered from the scene and neither did he ask the appellant for money. 13.PW5 Nelson Mandela Asore, confirmed that he was a clinical officer attached to Bute sub county hospital and was a registered clinical officer with 12 years’ experience. He produced the P3 form filled by Dr Abrham Mohammed, who had been transferred and was not available to testify, but was someone who they had worked with and was fully conversant with his handwriting and signature. The examination occurred about 72 hours after the alleged incident had occurred and PW1 had a minor injury on the left upper limb, externally her genetalia was normal and her labia minora too was normal. No injuries were noted and/or any discharge seen. The bruises seen could have been as a result of a struggle, but reiterated that no bruise was seen on the genitalia. 14.Under cross examination, he confirmed that the examination was done on 14.02.2024 and PW1 had given a history that she was 25 years old and was blessed with eight children. They did not know who had assaulted the patient, but it could be safely assumed that the bruises were a sign of a struggle. 15.The prosecution closed their case at that point, and the accused was placed on his defence and gave sworn evidence. C. Defence Case. 16.The appellant gave sworn evidence and stated that he was a Tuk Tuk operator at Bute and recalled that on 15.02.2024 he was given work by Mwalimu Hussein to fetch for him water and sand for his construction site. On 16.02.2025, he was summoned to Bute police station and was informed that PW1, had made a rape complaint against him, which incident was alleged to have occurred on 14.02.2025 and on 19.02.2025 recorded his statement and that of his witnesses. He was asked for how long he had, had an affair with PW1 but denied known the said complainant and insisted that he was innocent. The police demanded Kshs 100,000/= from him since he was being framed but he told them he could not raise that kind of money, and maintained his innocence. 17.He reiterated that on the material day, when the offence is alleged to have occurred, he worked the whole day at Mwalimu Hussein construction site which was at the outskirts of Bute town and was there until about 2000hrs, when he left for his house and reported back on the following morning. He insisted that he had been framed by the complainant as he had not raped her as alleged. Further as a result of this case, he had been physically attacked by known members public and he had reported the matter to the police, but the said complaint had eventually been settled when he was paid Kshs 10,000/=. He confirmed that PW3 was one of the persons who attacked him. He reitriated that he was framed and did not rape PW1. He thus urged the trial court to acquit him of the charges faced. 18.The trial court did consider the evidence presented and found the prosecution had established their case to the required standard and thus convicted the appellant under Section 215 of the criminal procedure code. After mitigation the appellant was sentenced to serve fifteen (10) years in jail. D. The Appeal The Appellant’s Submissions. 19.The appellant relied on his submissions filed on 04.03.2026 and further submission filed on 12.03.2026. He decried the fact that he was not informed of his right to legal representation and/or right to be assigned an advocate at state expense, which error was a not procedural lapse, but a substantive constitutional violation that prejudiced his right to fair trial, guaranteed under Article 50(2)(g)(h) of the constitution of Kenya 2010. As a result, he had suffered great prejudice, since he was illiterate and did not fully understand the court process/proceedings which took place before the trial court. 20.Secondly, he urged this court to find that the offence of rape was not proved. PW1 had stated that the offence occurred at 1600hrs, when he had forcefully removed her from the tuktuk, stripped her and sexually assaulted her, yet this evidence was not supported by that of other witnesses including PW5 whose medical finding were materially limited and had observed that appellant had no bruises on her genitalia, or tenderness on her thighs, no discharge and no spermatozoa was seen. She had only suffered a minor bruise on the left upper hand but the doctor had concluded that there was “possible rape”, which was not scientifically supported by the medical examination results. Reliance was placed in the case of Ndungu Kimanyi Vs Republic (1979) KLR 282, Kassim Ali vrs Republic (2006) eKLR, Martin Nyongesa Wanyonyi Vrs Republic, Cr App No 661 of 2010 & David Kuria Mwarangu Vs Republic (2014) eKLR, where it was held that the prosecution witnesses must be credible and consistent for them to be relied on. 21.Further, the trial court had erred by failing to find that the prosecution witness had failed to establish a nexus between him and the alleged act, and had relied on evidence which was materially inconsistent and raised a real possibility that it was based on fabrication. As a result, he had been convicted on circumstantial evidence, which merely raised a suspicion that an indiscretion may have occurred, but did not establish the said fact. Reliance was placed on the case of Kipkering arap Koske Vs Rep (1949) 16 EACA 135, Musoke Vrs Republic (1958) EA 715, Sawe Vrs Republic (2003) KLR 364, where it was held that conviction cannot be sustained where the circumstantial evidence fell below the legal threshold required to sustain a conviction. 22.The trial magistrate had further erred in relying on the evidence of PW1, without warning himself of the danger of doing so, and in light of the evidential weaknesses already highlighted above had no basis of convicting him. Reliance was placed in the case of Aball bin Wendo Vrs Republic (1953) 20 EACA 166, Roria Vrs Republic (1967) EA 583, Maitanyi Vrs Republic (1986) KLR 198 & Wamugunda Vrs Republic (1989) KLR 424 to support this assertion. 23.He also submitted that the trial magistrate had erred in failing to consider his defence, especially on the fact that he had been wrongly framed to have committed the offence and was a victim of police extortion, who demanded Kshs.100,000/= from him and when he could not raise the same proceeded to charge him in court. He had also established that on the material day, when the offence is alleged to have occurred, he was away working for Mwalimu Hussein and did not meet with PW1 nor was she a person known to him. The trial court had failed to consider this evidence, and/or to draw an independent inference on the same. This omission had greatly prejudiced his case and urged this court to correct the same. Reliance was placed in the case of Mwendwa Mulinge Vs Republic (2014) Eklr & Ouma Vrs Republic (1986) KLR 619 for emphasis. 24.The appellant thus urged this court to find that the appeal has merit and do proceed to overturn his conviction and set aside the sentence imposed. The Respondents Submissions 25.The respondent submitted that the evidence presented adequately proved that the appellant had intentionally and unlawfully raped the complainant, given that she had not consented for him to having sex with her. The complainant knew the appellant as they were from the same village and her evidence had been corroborated by the other witnesses. Their case had therefore been proved beyond reasonable doubt and his conviction was thus safe. 26.Further, the appellants defence of an alibi was unreliable because two witnesses placed him at the crime scene. The investigating officer too did visit the scene and established that an offence had been committed. Finally on the sentence passed. sentence, the appellant had been jailed for 10 years, which was the minimum sentence provided for under section 3(3) of the sexual offences Act, No 3 of 2006. 27.The respondent thus prayed that the appeal filed against both conviction and sentence be dismissed. E. Analysis & Detrmination 28.This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up with its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor. This court is guided by The Court of Appeal case of Okeno – VS – Republic (1972) EA 32 where it was stated as follows: -“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”. 29.Also in Peter’s vs Sunday Post(1958) E.A. 424 it was said that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower court finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the magistrate's findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses. 30.Having considered the lower court record, the grounds of appeal and the submissions of the parties, I find the following as issues for determination; Whether the case proved the case beyond reasonable doubt and secondly, whether the sentence passed was manifestly harsh and excessive. Whether the prosecution case was proved beyond reasonable doubt. 31.In this case, the Appellant was charged with the offence of rape contrary to Section 3 of the Sexual Offences Act No 3 of 2006 which provides as follows:1.A person who commits the offence termed as rape if;a.He or she intentionally and unlawfully commits an act which causes penetration with is or her genital organs;b.The other person does not consent to the penetration, orc.The consent is obtained by force or 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 ten years but which may be enhanced to life imprisonment. 32.The key ingredients of the offence of rape created in section 3(1) of the Sexual Offences Act include;(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.” 33.In the case of Republic vs. Oyier [1985] KLR 353 the Court of Appeal held that;“ 1.The lack of consent is an essential element of the crime of rape. The mens rea in rape is primarily an intention and not a state of mind. The mental element is to have intercourse without consent or not caring whether the woman consented or not. 2.To prove the mental element required in rape, the prosecution had to prove 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. 3.Where 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.” 34.On the element of penetration, the general rule is that even without considering the presence or otherwise of medical evidence, an offence of this nature can be proved by oral evidence of a victim of rape or circumstantial evidence. This position is fortified by the holding of the Court of Appeal in Martin Nyongesa Wanyonyi vs Republic Criminal Appeal No. 661 of 2010 (Eldoret), citing Kassim Ali v Republic Criminal Appeal No. 84 of 2005 (Mombasa), where the court stated that:“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence.” 35.In the present appeal, PW1 testified that as she walked home from the market at about 1600hrs, she met the appellant driving his Tuk Tuk and he did give her a lift, but upon reaching Haraya area, he detoured and drove the Tuk Tuk into a bush, threw her out, removed her cloths and forcefully inserted his penis inside her vagina, and only left her after ejaculating inside her. Further she had screamed for help but did not get help. The appellant then left her at the scene and later when she reached home, she took a bath and on the following morning reported the matter to the police. 36.On the other hand, PW2, the area chief stated that at about 1930hrs he got information from an informer that the appellant had been seen carrying PW1 in his Tuk Tuk and were headed towards [particulars withheld] from Bute town direction and had stopped near a bush at wataraya area, which was about 1.5km from his home. He immediately took his motorcycle and dashed to the said area, where he found the appellants TukTuk parked by the road side with no one inside and waited for about 30 minutes for anyone to arrive but no one appeared. He then left to go back to his home, but on the way, he met the PW1 walking toward [particulars withheld]. He stopped to inquire, where she was coming from since it was dark, and was carrying her child, but she did not disclose much and he left her and proceeded back to his home. On 14.02.2024, he got information that PW1 had registered a complainant against the appellant at Bute police station and later recorded his statement. 37.PW3 corroborated PW2 evidence, and stated that on the material night, at about 7.30pm he was riding his motorcycle on his way to Jima, when at Wataraya area, he saw the appellant carrying PW1 in his Tuk Tuk and they branched into the bush just before he passed them. Not certain about what was going on, his customer did call the area chief (PW2) and informed him of what they had seen and they proceeded on with their journey to Jima. 38.Having reevaluated the evidence presented, I do find that the prosecution evidence has left a lot of unexplained gaps, which has to be resolved in favour of the appellant. PW2 and PW3 confirmed that the incident occurred at about 1900hrs, while PW1 alleged that it was at 1600hrs. Secondly upon being informed of the parties suspicious movement, PW2 personally dashed to the scene and found the appellants TukTuk parked by the road side without any person therein After waiting for 30 minutes and not having been able to trace the appellant and/or PW1, he decided to go back home Fortunately, he met PW1, carrying her child and upon inquiry, she did not disclose much. If indeed it was true that she had been raped, it was at this opportune time that she should have raised her complainant with her chief but opted not to do so. 39.She then opted to raise complain two days later after the alleged incident had occurred, and upon being medically examined no incriminating evidence was noted, apart from her sustaining a bruise on her left forearm. The circumstance of the incident as explained by PW2 and PW3 are diametrically opposite of what PW1 alleged and leaves strong doubt as to the veracity of PW1’s evidence. In short, the evidence on record cannot sustain a safe conviction. See the holding in Ndungu Kimanji v Republic [1979] KLR 282; where the court did hold that :-“The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the Court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.” F. Disposition 40.I therefore find and hold that the appellants conviction is not safe and thus uphold his appeal. His conviction is therefore quashed and his sentence is set aside and he shall be forthwith released unless otherwise lawfully held. 41.It is so ordered. JUDGMENT READ, SIGNED AND DELIVERED IN VIRTUALLY COURT AT MARSABIT THIS 18TH DAY OF JUNE 2026.FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this 18th day of June 2026.In the presence of:-………………………………………..Appellant…………..………………………….For O.D.P.P………………………………….Court Assistant