https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9880

Kiraga v Republic (Criminal Appeal E068 of 2024) [2026] KEHC 9880 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9880 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E068 of 2024 JK Biomdo, J July 2, 2026 Between Hassan Ali Kiraga Appellant and Republic Respondent (Being an appeal against the sentence by Hon. R M AMWAYI (PM) in Kaloleni PM Court (SO) Case No. E004 of 2023) Judgment 1.The appellant herein, Hassan Ali Kiraga was charged before the Principal Magistrate’s Court, Kaloleni with the offence of rape contrary to section 3 (1) (a) (3) of the Sexual Offences Act, No. 3 of 2006. Particulars of the offence were that on 25 October 2019 at [Particulars withheld] Village, Jibana location, Kaloleni Sub -County in Kilifi County within coast region he intentionally and unlawfully committed an act which caused his male genital organ namely penis to penetrate the female genital organ namely vagina of TMM without her consent. 2.He also faced an alternative charge of committing an indecent act with adult contrary to Section 11 (1) of the Sexual Offences Act, No. 3 of 2006 with particulars stating that on 25 October 2019 at [Particulars withheld] Village, Jibana location, Kaloleni Sub-County in Kilifi County within coast region he intentionally and unlawfully committed an act which caused his male genital organ namely penis to touch the female genital organ namely vagina of TMM without her will. 3.The appellant denied the charges prompting the trial in which the prosecution to called four (4) witnesses. At the close of the prosecution’s case, he was placed on his defence where he elected to testify on oath without calling any witness. On 7 August 2023 the trial court rendered judgement where it found the appellant guilty, convicted him and sentenced him to ten (10) years imprisonment. 4.Aggrieved, the appellant filed the present appeal where he raised the following grounds of appeal;i.That the trial court erred in law and fact by failing to find that the complainant’s age was provedii.That the trial court erred in law and fact by failing to appreciate that the appellant’s identity was not positively provediii.That the trial court erred in law and fact by failing to appreciate that penetration was not proved.iv.That the trial court erred in law and fact by failing to appreciate that medical evidence adduced did not corroborate the charge as statedv.The trial court erred in law and fact by failing to adequately consider his mitigation.vi.The trial court erred in law and fact by failing to consider that he is remorseful and has since rehabilitated.vii.The trial court erred in law and fact by failing to consider that the prescribed sentence is harsh given that he is a first offender. 5.The appeal was heard by way of written submissions. The gist of the appellant’s submission is that the sentence meted upon him is harsh, excessive and did not take into account mitigating factors in his favour such as the fact that he has a family that depends on him, he is a first offender, he is remorseful and he has rehabilitated. He also challenged the mandatory minimum sentence imposed under Section 3 of the Sexual Offences Act which he deemed to be unconstitutional. He cited the cases of S vs Toms (1990) SA 802, S vs Mofokeng (1999) (1) SACR (502) w and S vs Malgas (2001)2 SA 1222 SCA where courts variously held that the imposition of mandatory minimum sentences by statute limits courts discretion in sentencing and is undesirable. 6.The Respondent opposed the appeal and reiterated that the appellant was properly convicted based on evidence which proved all ingredients beyond reasonable doubt. As regards sentencing, it was submitted that Section 3 (3) of the Sexual Offences Act provides a mandatory minimum sentence of 10 years which is lawful and must be observed by dint of the Supreme Court decision in petition No. E018 of 2013 R vs Joshua Gichuki Mwangi. 7.The respondent further contended that the mandatory minimum sentences do not deprive the court power to exercise judicial discretion in sentencing but set a floor rather than a ceiling. It was argued that the sentence was lenient considering the circumstances of the case. The court was implored to dismiss the appeal and uphold the conviction and sentence. Analysis and determination 8.This being the first appeal, the court has a duty to re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. See Okeno vs Republic [1972] EA 32, and Oiruri Mose vs Republic (2013) eKLR. 9.The Court of Appeal, in Kiilu & Another vs Republic [2005]1 KLR 174, stated thus;“An Appellant on a first appeal 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 a 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 draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.” 10.The issues for determination are as follows:i.Whether the prosecution proved the offence of rape beyond reasonable doubtii.Whether the mandatory minimum sentences are under the Sexual Offences Act are constitutionaliii.Whether the trial court exercised its sentencing discretion judiciously or whether the sentence is so harsh and excessive as to warrant appellate intervention Whether the prosecution proved the offence of rape beyond reasonable doubt 11.Section 3 of the Sexual Offences Act, No. 3 of 2006 (hereinafter referred to as ‘the Act’) defines rape as follows: -“3 (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. 12.From the above definition, the ingredients of the offence of rape, therefore, include proof that the victim was not a minor, proof of penetration, proof of identification of the perpetrator and proof that the consent was not freely given. The court will consider each ingredient independently. Age of the complainant 13.Age can be proved by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. See Thomas Mwambu Wenyi vs Republic Criminal Appeal No. 21 of 2015 (2017). 14.The complainant testified that she was born in 1957 meaning she was 62 years at the time of commission of the offence. The trial court noted that she was a female adult meaning that she was not a minor. This was not challenged and the court finds that the element was proved. proof of penetration 15.Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person. 16.“Genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus. To establish this element, the prosecution was required to prove either partial or complete insertion of the appellant’s penis into the vagina of the complainant. 17.Penetration can be proved through the complainant’s testimony and though desirable, corroboration by medical evidence is not mandatory. See Bassita Vs Uganda S.C Criminal Appeal No. 35 of 1995. 18.The court of appeal in Kassim Ali vs Republic Criminal Appeal No. 84 of 2005 (Mombasa) held: -“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”. See also Kosgei alias Weldon & another v Republic (Criminal Appeal E016 & E022 of 2021 (Consolidated)) [2026] KEHC 4800 (KLR). 19.PW1 Tanasha Mwachro Mdoe, the complainant testified that she is a widow. On 25 October 2019 in the morning, the appellant lured her to the farm on the pretext that he was going to get her coconut leaves, tripped her to the ground where she fell, threatened her with a knife, removed his trousers, removed her panty and forcefully had sexual intercourse with her by penetrating her vagina with his penis. After the ordeal, she went home and reported to the chief. PW2 Halima Kombe Gure the village elder and cousin to the appellant, testified that on 25 October 2019 in the morning, he went to the complainant’s house, found her sitting outside the house crying and stated that she could not walk. She told him that she had been raped by the appellant. 20.PW4 Mwangolo Chigulu a clinical officer at Mariakani sub-county hospital, examined the complainant on 2 November 2019 where he found she was somber, had a painful neck, chest, right forearm was painful, pain in the waist, swollen tender right lower limb, genitalia had swollen labia majora and minora leading him to the conclusion that there was forceful penetration with soft tissue injuries. He produced the P3 form and lab report as exhibits. 21.DW2 confirmed that the complainant went to the appellant’s house on the material day looking for coconut leaves. This corroborated the complainant’s testimony and placed the appellant at the crime scene. The court finds that the evidence by PW1 on the issue of penetration is cogent, consistent and corroborated by PW2, PW4 as well as DW2. The court finds that the element was proved. proof of identification of the perpetrator 22.The complainant testified on oath that the appellant raped her. The evidence of identification was, therefore, by a single witness. Such evidence must be treated carefully and cautiously. 23.In Republic vs Turnbull & Others (1973) 3 ALL ER 549 the Court considered the factors that ought to be considered when the only evidence turns on identification by a single witness. The Court said:....“The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way...? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? how long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made….” 24.The evidence by the single witness ordinarily calls for corroboration as so provided under Section 124 of the Evidence Act save for the evidence of a victim in sexual offences as long the court believes the victim. 25.In the case of Anjononi & Others vs. Republic [1980] KLR 59, the court of appeal stated as follows: -“...recognition of an assailant is more satisfactory, more reassuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or another.” 26.PW1 identified the appellant as the perpetrator by name. The two were neighbors and well known to her. They had engaged in a conversation the previous day and PW1 was following up the agreement on the material day. DW2 confirmed that indeed PW1 went to the appellant’s home on the material day. She narrated how he raped her after tripping her and threatening her with a knife. The court finds that the appellant was positively identified as the perpetrator. proof that the consent was not freely given 27.Lack of consent is a crucial component in the offence of rape. In Republic -vs- Oyier [1985] KLR 35 the court of appeal observed as follows: -i.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.ii.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.iii.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. 28.The complainant testified that the Appellant tripped her and she fell down, took out a knife and threatened her before having sexual intercourse with her. She reiterated that she did not consent to the intercourse. The use of force takes out the element of consent. 29.The court finds that the prosecution proved all ingredients of the offence and the conviction was safe. Whether the mandatory minimum sentences are under the Sexual Offences Act are constitutional 30.The circumstances upon which an appellate court may interfere with a sentence imposed by a trial court is well settled going by the decisions made by various courts. In the case of Livingstone Kakooza v Uganda SC Criminal Appeal No. 17 of 1993 the Court held:“An appellate Court will only alter a sentence imposed by the trial Court if it is evident it acted on a wrong principle or overlooked some material factor or if the sentence is manifestly excessive in view of the circumstances of the case. Sentences imposed in previous cases of similar nature, while not being precedents, do afford material for consideration.” 31.The appellant challenged the mandatory minimum sentence imposed under Section 3 of the Sexual Offences Act which he deemed to be unconstitutional. He cited the cases of S vs Toms (1990) SA 802, S vs Mofokeng (1999) (1) SACR (502) w and S vs Malgas (2001)2 SA 1222 SCA where courts variously held that the imposition of mandatory minimum sentences by statute limits courts discretion in sentencing and is undesirable. 32.The appellant was charged with the offence of rape contrary to section 3 (1) (a) and (3) of the Sexual Offences Act which provides a minimum sentence of imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life. 33.The constitutionality of mandatory minimum sentences was settled by the Supreme Court in Republic vs Joshua Gichuki Mwangi (2024) KESC 34 (KLR) where the court held that mandatory minimum sentences under the Penal Code, Sexual Offences Act or any other law are lawful. The court further clarified that the decision in Francis Muruatetu & Another Vs R; Katiba Institute & 5 Others (2021) eKLR is limited to the mandatory nature of the death penalty under Section 204 of the Penal Code and does not extend to other statutes. 34.Article 163 (7) of the Constitution provides that all courts, other than the Supreme Court, are bound by the decisions of the Supreme Court. Going by the Supreme Court decision in R vs Joshua Gichuki Mwangi (supra) this court finds that the mandatory minimum sentence under Section 3 of the Sexual Offences Act is constitutional and lawful. Whether the trial court exercised its sentencing discretion judiciously or whether the sentence is so harsh and excessive as to warrant appellate intervention 35.The appellant submitted that the sentence meted upon him is harsh, excessive and did not take into account mitigating factors in his favour such as the fact that he has a family that depends on him, he is a first offender, he is remorseful and he has rehabilitated. 36.Sentencing is an exercise of discretion by the trial court. In Bernard Kimani Gacheru Vs. Republic (2002) eKLR it was thus held:“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some material factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.” 37.The appellant was sentenced to 10 years imprisonment which is the minimum sentence that can be imposed. The trial court had discretion to award a higher sentence than the 10 years but arrived at the minimum mandatory sentence after considering the mitigation by the appellant and the circumstances of the case. This court finds no reason to depart from the said sentence. 38.In view of the above, the court makes the following orders;i.The appeal against conviction and sentence lacks merit and is accordingly dismissed.ii.The sentence of 10 years imposed by the trial court is upheld. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 2ND DAY OF JULY 2026JOSEPH KIPKOECH BIOMDOJUDGE