https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8883

Kirera v Republic (Criminal Appeal E022 of 2025) [2026] KEHC 8883 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEHC 8883 (KLR) Republic of Kenya In the High Court at Meru Criminal Appeal E022 of 2025 SM Githinji, J June 24, 2026 Between Stephen Kirera Appellant and Republic Respondent Judgment 1.Stephen Kirera was charged in the Lower Court with a main count of Rape, contrary to Section 3(1)(a)(c) as read with Section 3(3) of the Sexual Offences Act No. 3 of 2006. 2.The particulars of this offence are that on 28th day of February, 2024 at around 20:00 hours at [Particulars Withheld] village, Kiungu sub-location, Kiria Location, Imenti Central Sub-county within Meru County, the Appellant herein intentionally and unlawfully caused his penis to penetrate the vagina of CN aged 60 years without her consent. 3.In the alternative, the Appellant faced a charge of committing an indecent act with an adult, contrary to Section 11 (a) of the Sexual Offences Act No. 3 of 2006. 4.The particulars hereof being that on the 28th day of February 2024 at around 20:00 hours at [Particulars Withheld] village, Kinugu Sub-location, Kiria Location, Imenti Central Sub-County within Meru County, the Appellant herein intentionally touched the vagina of CN aged 60 years with his penis, against her will. 5.The prosecution case is that the victim who offered evidence as PW-1 was at the time of the alleged offence aged 60 years. On 28/2/2024 at about 8.00 Pm, she left her house to go and buy flour at the shop. Along the way she was suddenly accosted by the Appellant. She knew the Appellant as he comes from near her home place, though not very near. The Appellant held her by the neck and used a scarf to strangle her. He then pushed her near a banana plantation. She was not able to scream. He tore her inner clothes. He went on top of her after he had undone his zipper. He raped her. Whenever she tried to scream he gagged her by covering her mouth. 6.PW-2 who’s a neighbour of the victim was at that time on his way to Nkubu Town. He heard some noises emanating from the scene. He proceeded there to find out what was happening. He found the Appellant on top of the victim. He was pull off from her. The victim picked her panty and ran away towards the road screaming. PW-2 tried to apprehend the assailant but he overpowered him and ran away. 7.The victim went home and reported to her husband that the Appellant had raped her. She went and reported the matter at Kariene Police Station. PW-4 recorded her complaint and issued her with a P-3 and PRC forms. She then went to Kanyakine Sub-district Hospital. PW-3 examined her and filled her P-3 and PRC forms. 8.She noted upon examination that her hymen was broken and vagina walls inflamed. She also had physical injuries on the head, consistent with struggle. She concluded that the injuries were consistent with rape allegation. 9.The Appellant was beaten by members of the public and presented himself at the Police Station for safety. He was re-arrested. The police visited the scene and noted it was disturbed. They took photographs of it which were processed and produced as exhibits. 10.The Appellant gave sworn testimony and called no witness in his defence. In his defence he alleged that he was assaulted by the son of the victim in an incident where he lost 7,000/-. After doing that they rushed to the police station and raised false allegation against him. When he went to the Police station he found out about the made report. He was arrested and locked up. The complainant was aware that he had sold some property and claimed from him 50,000/-. 11.The Trial Court evaluated the evidence and found the Appellant guilty of the offence in the main count. He was convicted of the offence and sentenced to serve 10 years imprisonment. 12.Dissatisfied with the said conviction, the Appellant filed an appeal, founded on the following grounds:-1.That, the Learned Trial Court Magistrate erred in both law and fact by convicting the Appellant on contradictory evidence.2.That, the Learned Trial Court Magistrate erred in matters both law and fact by basing a conviction on the Appellant over the prosecution case which was full of reasonable doubts.3.That, the Learned Trial Court Magistrate erred in matters of law and facts by disregarding Appellant’s defence in totality.4.That, the Trial Court Magistrate failed in both matters of law and fact by failing to call essential witnesses especially those who are said to have escorted the Appellant to the police station.5.That, the Learned Trial Court Magistrate erred in matters both law and fact by convicting the Appellant on such poor identification conditions which needed thorough scrutiny. 13.The appeal was canvassed by way of Written submissions and both parties filed their respective submissions. 14.This being a first appeal, this Court is under a duty to re-evaluate, re-analyse and reconsider the evidence that was adduced before the trial Court and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and should therefore give due allowance for that fact. 15.The offence of Rape under Section 3 of the Sexual Offences Act No. 3 of 2006, consists of four essential elements:-a.Proof of penetration.b.Proof that the accused (Appellant) was the perpetrator.c.Proof that the complainant (victim) did not consent, andd.Where relevant, proof that any apparent consent was obtained through force, threats or intimidation. 16.Section 2 of the Sexual Offences Act defines penetration as:“The partial or complete insertion of the genital organs of a person into the genital organs of another person.” 17.It therefore follows that the prosecution does not have to prove full penetration. Even the slightest penetration satisfies this ingredient. The Court of Appeal in Mark Oiruri Mose -vs- Republic (2013) eKLR, affirmed that even the slightest penetration suffices and need not be deep inside the complainant’s genital organ. 18.In this case the victim stated that her panty was torn and the assailant opened his trouser, before the act. This demonstrates that it’s the sexual organs which were involved in the act. The assailant then went on top of her and was found in that position by PW-2 who pulled him off. The evidence of the clinical officer shows that the victim’s hymen was torn. Thought she’s a married elderly woman whose torn hymen cannot be associated with the alleged incident of rape, her vaginal walls were inflamed of which PW – 3 associated with the alleged rape. In the case of Dennis Mwangi Mbuthia -vs- Republic (2018) eKLR, the Court held that medical evidence showing injuries consistent with sexual penetration (e.g vaginal tears, blood, or broken hymen) is sufficient to support a finding of penetration even where DNA or spermatozoa is absent. 19.The evidence of PW-1 and PW-2 when weighed together with the evidence of PW-3, leaves no doubt that the victim was penetrated. 20.On the issue of consent, PW-1’s evidence shows that she was grabbed by the assailant, gagged and pulled near a banana plantation where she was forcefully penetrated. She even had some head injuries which PW-3 associated with struggle. The fact that she made some cry for help during the incident which attracted PW-2 to the scene, and after the incident which attracted other villagers, demonstrates as well that she had not consented to the incident. In Republic -vs- Oyier (1985) KLR 353, the Court of Appeal held that consent must be free and voluntary, submission through fear, threats, or force is not consent. I therefore conclude that the victim (PW-1) did not consent to the alleged incident. 21.The last element is of identification or recognition of the appellant as the real culprit. 22.The incident happened at night at 8.00 p.m. The victim did not indicate the source of light that enabled her to see and recognize the appellant. Its only PW-2 who indicated that there was electric light at the buildings nearby. On cross – examination by the appellant he said “yes, there was sufficient light.” The victim said she knew the Appellant before then as he comes from near her place, but not very near. She did not expound further or even describe him. Towards the end of her testimony she stated that she had not seen him for sometime before the incident. PW-2 did not claim to had known the appellant before then. 23.It is trite law that where the only evidence against an accused is evidence of identification or recognition, a trial Court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification or recognition were favourable and free from possibility of error before it can safely make it the basis of conviction. In the case of Wamunga -vs- Republic (1989) KLR 424, the Court of Appeal held that evidence of identification at night must be treated with great caution. 24.The Court must therefore examine:-i.Quality of light (torch, moon light, security light, etc)ii.Distance between witness and the accused.iii.Duration of observation.iv.Whether it was a fleeting glance or sustained observation. 25.Such is crucial for even recognition of a person known to the witness can still be mistaken, especially at night. 26.In this case, the Court was not told how far the alleged security lights were from the scene. Their intensity was not stated. Their position in relation to the banana plantation was not described to withdrawal possibility of there being obscuration of light. The witnesses did not state how they were able to recognize the appellant. Was it by his physical appearance or voice? He was also not described physically or otherwise. It is not clear where he was arrested, and by who. Save for the alleged recognition at night there’s no any other evidence connecting him to the alleged incident. 27.I do agree with his submissions that the evidence of his alleged recognition was not properly or adequately evaluated by the trial Court. Identification or recognition evidence must be carefully tested as mistaken recognition is possible even by honest witnesses. 28.Having considered the foregoing, I do find that there exist reasonable doubts as to whether the appellant was the real culprit. If the trial Court had properly and adequately evaluated the evidence, it should have accorded the appellant the benefit of doubt on this. I do hereby accord him the said benefit. 29.The bottom line is that the conviction was unsafe and is hereby quashed as well as the 10 years meted sentence. The appellant is set free unless otherwise lawfully held. DATED AND DELIVERED AT MERU THIS 24TH DAY OF JUNE, 2026.S.M. GITHINJI –JUDGE24/6/2026In the presence of:-Appellant – present at Uruku PrisonMs. Wakoli for the State.