https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6848

Huka v Republic (Criminal Appeal E004 of 2026) [2026] KEHC 6848 (KLR) (20 May 2026) (Judgment) Neutral citation: [2026] KEHC 6848 (KLR) Republic of Kenya In the High Court at Marsabit Criminal Appeal E004 of 2026 FR Olel, J May 20, 2026 Between Ali Guyo Huka Appellant and Republic Respondent Judgment A. Introduction 1.The Appellant was charged on count I with the offence of rape contrary to Section 3(1),(a),(b),(3) of the sexual offences Act No 3 of 2006. The particulars were that on the 14th day of May 2025 at [Particulars Withheld], in [Particulars Withheld] Sub-county within Marsabit County, intentionally and unlawfully caused his penis to penetrate the vagina of T.U.I without her consent. 2.On the alternative count I the Appellant was charged with the offence of committing an indecent Act with an adult contrary to section 11 (1) of the Sexual Offences Act No 3 of 2006. The particulars of the offense were that on the 14th day of May 2025, at [Particulars Withheld] in [Particulars Withheld] Sub County within Marsabit county, he intentionally touched the vagina of T.U.I with his penis without/against her will. 3.During trial the prosecution called five (5) witnesses who testified in support of their case. The appellant was placed on his defence, gave sworn evidence in support of his case and further called two witnessed who supported his case The trial magistrate did consider all the evidence adduced and found the Appellant guilty of the offence of rape on and proceeded to convict him under section 215 of the Criminal Procedure Code. He was thereafter sentenced to serve ten (10) years imprisonment. 4.The Appellant, being dissatisfied by the conviction and sentence, filed his petition of Appeal dated 03.02.2026 and raised the following grounds of Appeal.a.That the learned Trial Magistrate erred in matters of the law and fact in holding that the prosecution had proved its case beyond reasonable doubt when in fact they had not.b.That the learned trial magistrate erred in both matters of law and fact in failing to independently analyze and/or evaluate the evidence on record hence an erroneous determination.c.That the learned Trial Magistrate still erred in failing to appreciate and find that all the charges preferred against the Appellant had not been established and proved as required in law. 5.The Appellant thus urged the court to find that his appeal had merit and be pleased to set aside his conviction and sentence. B. Prosecution Case 6.PW1 T.U Isako testified that she reared livestock and sold milk within the community to make ends meet. She recalled that on 14.05.2025 at about 4.00pm she was doing round selling milk, and when she arrived at the appellant house, she inquired if he was interested in purchasing the same. The appellant welcomed her into his house and before she could settle, held her by her neck, overpowered her and placed her on his bed, before forcefully separating her legs(she did not have a panty ) and inserted his penis into her vagina. He later released her at about 5.00pm, and when she left his house, she felt dizzy and fainted. She later found herself in hospital, where she got treated and later recorded her statement with the police. 7.Under cross-examination she reaffirmed that the appellant was not her friend and that she had only gone to his residence to sell milk. The appellant’s house was a mud house roofed with iron sheet, but was on open ground and was not fenced. She further alleged that , when she arrived at the appellant house, he was not putting on a shirt and had only covered himself with a Kikoi. She insisted that the appellant did rape her until she became unconscious. 8.PW2 CT recalled that on 14.05.2025 she was at her shop and saw several people gather outside a clinic nearby. She rushed to see what was happening and discovered that her sister in law (PW1) was lying on the ground unconscious. She got help and took her to a relative’s house and later took her to hospital, where she was treated. PW3 Barako Sharamo Galgalo confirmed that he was called by PW3, who requested him to assist her take PW1 to hospital and he did so, 9.PW4 PC leonard Macharia of [Particulars Withheld] police station confirmed that a complaint of rape was lodged at th station on 14.05.2025 and he referred PW1 to seek treatment at Kalacha dispensary, where she received medical assistance and was issued with a P3 form. After recording witness statements he did arrest the appellant and preferred the charges he faced before court. 10.PW5 Harun Chesang, the clinical officer based at Kalacha hospital confirmed that on 14.05.2025 he was on duty, when they received PW1 who complained of abdominal pain. On examination he noted that she had tenderness in the lower abdomen, but had no vagina bleeding or no bruises, and also had no tenderness on the neck. There was also white slippery discharge around the vulva, labia majora and minora (possible semen) and it was also established that she was pregnant. Under cross examination he confirmed that he did not establish if the white discharge was semen C. Defence Case 11.The prosecution closed their case at that point, and the accused was placed on his defence and gave sworn evidence. He recalled that he was at home on 14.05.2025 with his mother and sister, when a lady came to sell milk. She milled around for some time after which she started to complain that he had raped her, walked out of his house and fell on the road, where she was assisted by members of the public. He was later arrested but reiterated that he never committed any offence. 12.Under cross examination, he confirmed that he resided in an iron sheet house and it was true that PW1 came to hawk milk around his home and he did buy milk worth Kshs.300/= from her. There were other family members around the said home and he again reiterated that he did not rape the complainant. 13.DW2 Hellen Guyo confirmed that she was the accused sister. On the material day, she was at home when PW1 came to hawk milk. The appellant proceeded to buy milk for Kshs 300/= and gave PW1 Kshs 1000/=, where upon she asked to be allowed to go buy sugar in order to get change. After she left, she did not come back. DW3 Robe Ele Katelo evidence mirrored that of DW2. 14.The trial court did consider the evidence presented and found the appellant guilt of the offence of rape and after mitigation the appellant was sentenced to serve ten ( 10 ) year jail term D. The Appeal The Appellant’s Submissions. 15.The appellant submitted that the trial magistrate erred in convicting him based on contradictory and unsatisfactory evidence, that collapsed under the weight of its own inconsistencies. The complainant had alleged that she had been allegedly raped continuously for one hour, which if taken on face value suggests a prolonged ordeal during which one would reasonable expect resistance, alarm or attempts of her escaping none of which was proved and invites doubt regarding circumstances surrounding the said incident. Reliance was placed in the case of Sawe Vs Republic (2003) KECA 182 (KLR), where it was held that strong suspicion could not be used as a basis to convict an accused person, unless the inculpatory facts were inconsistent with the accused innocence 16.Secondly, she had testified that the appellant had held her neck tightly during the said ordeal, which implied application of considerable physical force, which in ordinary circumstance would reasonably expected to leave visible injuries, bruises or abrasions, around the neck region. However medical evidence adduced before the trial court did not reveal any injury or clinical findings consistent with strangulation or forceful gripping of the neck. This was a glaring inconsistency which could not be ignored and the court had to be cautious before using such evidence to convict the appellant. Reliance was placed in the case of Ndungu Kimanyi Vs Republic; where credibility of a witness was emphasized. 17.Further, it was also to be noted that PW5 had conceded before court he did not undertake laboratory test to confirm if the whitish discharge observed was indeed semen and without the said laboratory analysis, the assertion remains mere supposition. Reliance was placed in the case of Philip Nzaka Watu Vs Republic where the court of appeal emphasized that “where medical evidence contradicts the complainant’s testimony, the benefit of doubt must accrue to the accused person.” 18.He reiterated that there was no proof of penetration established either by the complainants and/or through medical evidence, and since the exhibits produced did not link him to the crime, the trial magistrate ought to have given him a benefit of doubt. The evidence presented lacked corroboration was weak, inconsistent and the proof beyond reasonable doubt was not established. Reliance was placed in the case of Woolmington Vrs Dpp 1935 AC, 462 and also Miller vrs Minister of Pensions 1942 AC. 19.In the final analysis, the prosecution evidence did not meet the threshold of credibility required to sustain a conviction of such a grave offence and this had made his conviction unsafe. 20.The appellant thus prayed that this court finds favour in his Appeal and be pleased to allow the same against conviction and sentence. The Respondents Submissions. 21.The respondent relied on their submissions dated 11th March 2026, wherein they concede that the conviction herein was not safe. The trial court had convicted the appellant based Solely on the testimony of the complainant which was not corroborated. On the issue of penetration, the complainant had stated that the appellant had grabbed her by her neck, which he squeezed in order to overpower her, but the medical evidence tendered had disapproved this and PW5 had found that the complainant had not suffered any bruises or tenderness on the neck area. 22.Unfortunately, the court had held otherwise, with respect to the neck injury, which was a misdirection. Also the white discharge noted was not tested in the laboratory and thus was not scientifically established to be male semen or normal pregnancy discharge . 23.Finally, identification was not clearly established as both the accused and the complainant had denied knowing each other and other prosecution witnesses had given secondary evidence, which did not add much probative value to the prosecution case. The investigating officer, who was to clarify these facts too gave a shallow account of his role in the case. 24.All in all, the respondent urged the court to find that the evidence adduced had unexplained gaps, which created reasonable doubt as to whether indeed the appellant committed the offence he was convicted of. His conviction was therefore unsafe and urged the court to allow the appeal. E. Anlysis & Detrmination 25.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”. 26.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. 27.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 prosecution 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. 28.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. 29.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.” 30.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 men’s 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.” 31.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.” 32.In the present appeal, PW1 stated the she did go to the appellants home to sell milk and when she entered the appellants house, he forcefully held her by her neck, lifted her and placed her on his bed, increased the volume of his radio, while continuing to exert pressure on her neck and inserted his penis into her vagina and raped her. It was her further evidence that he raped her for one hour and released her at 5.00pm. She walked out of his house feel dizzy and fell before finding herself in hospital later in the evening. 33.PW5 examined PW1 later that night at Kalacha Hospital and confirmed that she had tenderness on the lower abdomen, but on her vagina, there was no bleeding or bruises noted and Similarly there was no tenderness on the neck region. He also observed that there was white slippery discharge around the vulva, labia majora and minora ( possible semen) but the same was not established through laboratory testing. 34.The appellant In defence admitted that it was true that the complainant had come to their home to sell milk but strenuously denied that he raped her. His evidence was supported by DW2 and DW3. 35.Section 124 of the Evidence Act, Cap 80 provides as follows:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him.Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. 36.PW1 alleged that the appellant strangled her, and in her own words, “ squeezed my neck and overpowered me” then forcefully placed her on his bed before proceeding to rape her from 4.00pm to 5.00pm, when he let her leave. She fainted and regained consciousness in hospital, where on examination the clinical officer (PW5) noted that she had not bruises or tenderness on her neck and/or on her private part. Further though she had whitish discharge around her Valva, labia majora and minora (possible semen) the same was not swabbed for laboratory examination 37.Given the sequence of events and length of time the incident is alleged to have occurred, it is naturally expected that PW1 would at least have some bruises or tenderness on the neck and/or abrasion caused by one hour of forced intercourse. The medical evidence did not reveal incriminating evidence any creates doubt as to what really occurred when they met. No doubt there is strong suspicion that a crime was committed but as stated in Sawe Vs Republic, 2003 Eklr 364“Suspicion however strong, cannot provide the basis for inferring guilt which must be proved by evidence beyond reasonable doubt.” 38.Penetration under the given circumstances was not established and as rightly observed by the prosecution the exculpatory evidence creates reasonable doubt as to whether indeed the accused committed the said offence. F. Disposition 39.This Appeal therefore has merit. The Appellants conviction and sentence passed by Hon S.K Arome (PM) dated 20th January 2026 in Marsabit SPM MCSO NO 0003 OF 2025 is hereby quashed and set aside and the appellant will be forthwith released unless otherwise lawfully detained. 40.Right of Appeal 14 days. 41.It is so ordered. JUDGMENT READ, SIGNED AND DELIVERED IN VIRTUALLY COURT AT MARSABIT THIS 20TH DAY OF MAY 2026.FRANCIS RAYOLA OLELJUDGEDelivered in open Court this 20th day of MAY 2026.In the presence of:-Present in Court …………………………..AppellantMr. Mburugu …..………………………….For O.D.P.PMr. Jarso ………………………………….Court Assistant