https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12056

Aluoch v Republic (Criminal Appeal E015 of 2025) [2026] KEHC 12056 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 12056 (KLR) Republic of Kenya In the High Court at Homa Bay Criminal Appeal E015 of 2025 JR Karanja, J July 29, 2026 Between Kelvin Odiwa Aluoch Appellant and Republic Respondent (From original conviction and sentencing in Homa Bay CM’s court S.O.A.NO.E025 of 2022 by Hon. R.B.N. Maloba, PM, on 5th January 2023) Judgment 1.After appearing before the Chief Magistrates’ Court at Homa Bay facing a charge of rape, contrary to Section 3(1)(a) and (c) as read with Section 3(3) of the Sexual Offenses Act, the appellant, Kelvin Odiwa Aluoch, pleaded not guilty to the charge which was grounded on the facts that he forcefully had sexual intercourse with the complainant on the 15th June 2022 within the county of Homa Bay. He also pleaded not guilty to the alternative count of committing an indecent act with the same complainant, contrary to Section 11(A) of the Sexual Offenses Act. 2.At the end of the trial, the appellant was convicted on the main count of rape and sentences to ten(10) years imprisonment. However, being dissatisfied with the out come he preferred the present appeal on the basis of the grounds set out in the petition of appeal filed herein but undated.The appellants’ major complaint is that the trial court erred in both facts and law by convicting him on evidence which was insufficient, uncorroborated and contradictory.The appellant implied that the trial court disregarded his alibi defence and that the sentence imposed upon him was harsh and excessive. He prayed for this appeal to be allowed. 3.The hearing of the appeal was by way of written submissions. The state/respondent through the learned Assistant Director of Public Prosecution, Ms Brenda Oduor, opposed the appeal and called for its dismissal.Upon hearing both sides on the basis of rival/submissions, it was the duty of this court to reconsider the evidence and arrive at its own conclusion bearing in mind that the trial court had the benefit of seeing and hearing the witnesses. 4.In that regard, the prosecution case was anchored on the evidence of the complainant, Angeline Mwai Okode (PW1), who was over eighty (80) years old at the material time of the offence and testified that on the material night after taking her dinner and praying she proceeded to sleep after closing the house door and having the electricity light inside and outside the house switched on by her grandson. However, she was awakened from her deep sleep by unusual movements under her bed and shortly thereafter a person crawled from under the bed and held her by the neck. He chocked her in the process and raped her while unconscious. 5.The complainant further testified that on regaining consciousness she felt pain on her private part and was bleeding. She got out of her bed and found the house door open. Thereafter, she proceeded to the homestead of her daughter in law Monica Akinyi (PW2) while crying. She informed Monica that she had been offended by the appellant. 10.She(complainant) indicated that due to the house being well lit on the material night. She saw and recognized the appellant as the person who crawled from under her bed, held her tight by the neck and raped her. 6.Upon seeing the complainant when she went to her home, Monica(PW2) confirmed that the complainant had indeed been raped as she was bleeding from her private parts. She (PW2) took her (complainant) to the Homa Bay Teaching and Referral Hospital where she was examined and treated by a Clinical Officer, Moses Otieno Osumo(PW3), who thereafter compiled and signed the necessary police medical report form (P3 Form)(PEX3) confirming that the complainant was sexually assaulted. 7.The area chief of Kanyachar location Bernard Ooko Omuga (PW4) was notified of the sexual assault and informed that the appellant was suspected of having been responsible for the same.The chief knew the appellant and traced him at Rodi Kopany where his arrest was effected.After arresting the appellant the chief took him to the local police station from where he was transferred to Marindi police post. P.C Margaret Mageto (PW5) booked the appellant at the police post after which he was later arraigned in court. 8.The appellant denied the offence. His defence case was that he did not commit the offence on the alleged date as he was at his home having not gone to work as a motorcycle taxi operator (bodaboda). He proceeded to bed at about 9.00pm or thereabout and at about 10.00pm his brother picked him and they went to see their sick mother at her home where they stayed upto to 4.00am.At about 8.00a, he left home for work upto 1.00pm where he proceeded home for lunch after having purchased medicine for his mother who then informed him that the area chief was looking for him. 9.He (appellant) went to see the chief and found him at Rodi. It was then that the chief arrested and handed him over to the police from whom he learnt that an old woman had been raped within his home village. He was suspected and locked in the police cells after which he was taken to hospital before being taken to Homa Bay police station. 10.The appellant contended that he was framed for the offense and implied that this was as a result of his disagreement with the complainant over a debt arising from consumption of the local liquor known as ‘chang’aa’. He indicated that the complainant was a local chang’aa brewer and seller who threatened to do something to him which he would never forget in his life. 19.In essence, the appellant’s defence was a denial and a contention that he was implicated by the complainant over a debt disagreement. His mother, Joyce Obonyo Aluoch (DW1) testified that he was at her home on the material night and actually spent the night there. He left her home on the following morning and went to work at Rodi on his motor cycle. 11.The appellant’s brother, Fredrick Okumu Joseph(DW2), testified that he was at his home on the material date and remained there throughout the day and night. He did not know where his brother (appellant) was on the material date. The foregoing evidence by the defence coupled with that of the prosecution witnesses clearly showed that there was no particular dispute that the complainant, (PW1) was indeed sexually assaulted by being raped on the material date and time. In any event, the fact was confirmed by the complainant’s evidence as corroborated by that of her daughter in law (PW2) and the clinical officer (PW3) in as much as it established and proved that the complainant was subjected to an act of sexual intercourse against her will by use of force with an intruder who entered her house without her knowledge and hid under a bed only to pounce on her while, she was asleep. 12.Basically, what emerged as the main issue for determination by the trial court was whether the appellant was positively identified as the person responsible for sexually assaulting the complainant. In that regard the sole evidence was that of the complainant which indicated that the identification was more by recognition than confirming else as the appellant and the complainant were previously known to each other.In fact, the evidence by the appellant’s mother (DW1) indicated that she and the complainant (DW1) were co-wives of their late husband. This therefore meant that the appellant was a step son or half son of the complainant. 13.The trial court in its finding on the issue of identification acknowledged that the evidence in that regard was by a single witness in the hours of darkness but proceeded to find that it was credible and sufficient enough to prove that the appellant was indeed the person who sexually assaulted the complainant. In doing so, the trial court relied on the English court decision in the case of R V Turnbull & others [1976]3 ALL ER 540). 14.This court finds no reasons to depart from the trial court’s findings on identification in as much as it was shown by the prosecution that adequate opportunity and favorable conditions existed at the material time for a positive identification of the appellant by the complainant. It would therefore follow that the appellant’s conviction by the trial court was lawful and proper. He was clearly place at the scene at the material time by the complainant. His alibi defence was thus disproved and his entire defence rendered an afterthought. 15.The ten(10) years imprisonment sentence imposed on the appellant was lawful, neither harsh nor excessive and was indeed commensurate with the circumstances of the case.In the upshot, this appeal was devoid of merit and is hereby dismissed in its entirety. Both the appellant’s conviction and sentence by the trial court are hereby upheld, however, the period served by the appellant in custody be taken into consideration in the computation of the sentence. Ordered accordingly. [DELIVERED & DATED THIS 29TH DAY OF JULY 2026].............HON. J.R. KARANJAHJUDGE