https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12677

Kinyua v Republic (Criminal Appeal E058 of 2024) [2026] KEHC 12677 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 12677 (KLR) Republic of Kenya In the High Court at Nanyuki Criminal Appeal E058 of 2024 JN Kamau, J July 29, 2026 Between Linus Mwiti Kinyua Appellant and Republic Respondent (Being an Appeal from the Judgment of Hon Vincent Mechumo Masivo (SRM) delivered at Nanyuki in the Chief Magistrate’s Court in Sexual Offence Case No E049 of 2021 on 26th August 2024)) Judgment Introduction 1.The Appellant herein was charged with the offence of rape contrary to Section 3(1) (a) (b) and (c) as read with Section 3 (3) of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of the offence of committing an indecent act with an adult contrary to Section 11(A) of the Sexual Offences Act. 2.The Trial Court, Hon Vincent Mechumo Masivo (SRM), convicted him of the main charge and sentenced him to ten (10) years’ imprisonment. 3.Being dissatisfied with the said Judgment, he lodged an appeal herein on 6th September 2024. His Petition of Appeal was dated 9th September 2024. He set out six (6) grounds of appeal. 4.His Written Submissions were dated 24th February 2026 and filed on 25th February 2026 while those of the Respondent were dated 9th April 2026 and filed on even date. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety. Legal Analysis 5.It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion bearing in mind that it neither saw nor heard the witnesses testify. 6.This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect. 7.Having considered the Appellant’s Grounds of Appeal, the Record of Appeal, the Appellant’s Written Submissions and the Respondent’s Written Submissions, this Court identified the following issues for determination: -a.Whether or not the Prosecution proved its case beyond reasonable doubt;b.Whether or not the sentence that was meted upon the Appellant herein was excessive warranting interference by this court. 8.The court therefore dealt with the said issues under the following distinct and separate heads. I. Proof Of Prosecution’s Case 9.Ground of Appeal No (1), (2), (3), (4), (5) and (6) of the Petition of Appeal were dealt with under this head as they were all related. 10.In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this court considered the ingredients of the offence of rape. 11.It is now settled that the ingredients of the offence of rape are proof of penetration, lack of consent and/or use of threats or intimidation of any type to obtain the consent, and proof of identification of the offender. The ingredients of the offence of rape can be discerned from Section 3 of the Sexual Offences Act Cap 63A (Laws of Kenya), which states as follows:“A person commits the offence termed as 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; orc.the consent is obtained by force or by means of threats or intimidation of any kind.” 12.This court dealt with the same ingredients of rape under the following distinct and separate heads. A. Identification 13.Although the Appellant did not expressly challenge his identification as one of the grounds of appeal, he contended that the Prosecution’s evidence was insufficient, inconsistent and incredible, and that the contradictions therein rendered the conviction unsafe. In particular, he relied on the inconsistencies between the evidence of the Complainant (hereinafter referred to as “PW 1”) and that of Peter Githinji Kioni (hereinafter referred to as “PW 5”) to argue that the Prosecution had failed to establish its case beyond reasonable doubt. 14.He was categorical that the Trial Court erred in law and fact by dismissing his defence as a mere denial and failing to accord it due and adequate consideration without giving cogent reasons. He contended that he was heavily intoxicated on the material night and could not recall the events after leaving the bar which raised reasonable doubt as to his capacity to have mens rea. 15.He further submitted that his defence was corroborated by John Muigai (hereinafter referred to as “DW 2”), who testified that both he (the Appellant) and PW 1 appeared drunk. He argued that the Prosecution failed to disprove his defence and that the Trial Court misdirected itself by invoking Section 111 (1) of the Evidence Act, thereby shifting the burden of proof to him. He was emphatic that this was contrary to the principle that the burden of proving a case rested with the prosecution during the entire trial as was held in the case of Woolmington vs DPP (1935) AC 462. 16.On its part, the Respondent submitted that the Appellant was positively identified as the perpetrator of the offence. It was categorical that the circumstances under which the offence was committed were sufficient for his identification. It argued that the evidence adduced before the Trial Court established that PW 1 knew him prior to the incident as he was her neighbour. It further submitted that the case was one of recognition rather than identification of a stranger and, therefore, it was free of doubt with no possibility of mistaken identity. 17.It pointed out that PW 1 testified that she met the Appellant at Makuti Bar on the material evening, where they drank alcohol together before leaving the bar in each other’s company. It averred that the evidence the Prosecution witnesses adduced was consistent and corroborated each other. It submitted that there were no material contradictions that weakened the Prosecution’s case. 18.It averred that the Trial Court considered the Appellant’s defence and found it to have been a mere denial. It argued that a mere denial could not displace cogent Prosecution evidence. 19.This court perused the proceedings of the lower court and noted that PW 1 testified that on 30th June 2021, at about 6.30 pm, she met the Appellant at Makuti Bar where they consumed alcohol together before leaving the premises at about 7.00 pm. She stated that just at the gate of the Bar, the Appellant pushed her to the fence, touched her breasts and squeezed them. She said that she freed herself and left her jacket with him. She testified that she tripped on a stone and fell whereupon he held and dragged her on the ground while stepping on her legs. 20.She added that he hit her with a blow on her mouth and she retaliated by kicking him. She said that she bit him on the hand and they struggled on the ground for about ten (10) minutes. She further testified that he gagged her mouth and threatened to kill her if she continued screaming. He removed the hand she had placed on her private parts and inserted his penis into her vagina. She said that she screamed and an old man with a spot light appeared and shone the light on her and the Appellant. She identified the Appellant by his name, Mwiti, a neighbour whom she had known for approximately six (6) months prior to the incident. 21.The Appellant did not dispute that he was with PW 1 on the material evening. He asserted that he became heavily intoxicated after they left the bar. His defence was, therefore, not one of mistaken identity but, rather one of denial of the commission of the offence on account of his intoxication. 22.In the case of Anjononi & 2 Others vs Republic (1980) KECA 23 (KLR), the Court of Appeal held that evidence of recognition was generally more satisfactory, more assuring and more reliable than identification of a stranger because it was based upon the witness’s prior knowledge of the accused person. 23.Having independently re-evaluated the evidence on record, this court found that the Appellant was positively identified by way of recognition. PW 1 knew him before the incident, spent time with him at the bar immediately before the offence, and remained with him until after the attack occurred. The Appellant himself admitted that he was in her company at the Bar where she bought him a drink that left him too intoxicated. There was, therefore, no possibility of mistaken identity. He was squarely placed at the scene. 24.The contradictions he raised relating to the events witnessed by PW 5 after he arrived at the scene did not cast doubt as to his identity as the person who was with PW 1 on the material night. Indeed, the contradictions and inconsistencies were immaterial, inconsequential and not strong enough to have weakened the Prosecution’s case. His assertions that the Prosecution witnesses’ evidence was full of contradictions and inconsistencies thus, fell by the wayside. Accordingly, this court thus came to the firm conclusion that the Prosecution proved the ingredient of identification, which was by recognition. B. Penetration 25.The Appellant submitted that the Prosecution failed to prove the ingredient of penetration beyond reasonable doubt. He contended that although, Salad Guyo the Clinical Officer (hereinafter referred to as “PW 3”) testified that spermatozoa were observed, the evidence on record created doubt as to whether penetration actually occurred. He submitted that PW 1 testified that she struggled with him, had her trousers below her knees and covered her vagina with her hands, making it improbable that penetration occurred in the manner. He further submitted that whereas she told the Trial Court that he wore and later discarded a condom, the police only recovered a packet of Trust condoms at the scene but no used condom was recovered or produced in evidence. 26.He averred that whereas PW 1 testified that he hit PW 5 and they started fighting which gave her an opportunity to escape, PW 5 merely stated that the man and the lady released each other, with the man walking away and the lady following him. He asserted that the inconsistencies in their evidence were not minor, but fundamental and fatal and incapable of sustaining a conviction. He contended that a witness who had been called to corroborate PW 1’s evidence in fact contradicted her evidence. 27.He added that the failure by the Prosecution to produce crucial exhibits like the clothes that were recovered from him created a significant evidentiary gap in its case. He argued that had the clothes been produced, they would either have corroborated or disproved the Prosecution’s allegation of a violent struggle and penetration. In this regard, he referred this court to the case of Abdallah Bin Wendoh & Another vs Republic (1953) EACA 166 where the court held that failure by the prosecution to produce material evidence that would assist a court in determining the truth had to be construed in favour of the accused person. 28.On its part, the Respondent argued that PW 1 gave a clear and consistent account of how the Appellant overpowered her, threatened to kill her, removed her hand that she was using to cover her vagina and penetrated her as she screamed for help. It asserted that this testimony was corroborated by the P3 Form, the Post Rape Care (PRC) Form, treatment notes and laboratory results which PW 3, produced, all of which confirmed the presence of spermatozoa. 29.It relied on Section 2 of the Sexual Offences Act and submitted that penetration meant the partial or complete insertion of the genital organs of one person into the genital organs of another. It placed reliance on the case of Mark Oiruri Mose vs Republic (2010) KEHC 1911 (KLR), where the Court of Appeal held that the slightest penetration was sufficient to prove the offence and that the prosecution was not required to prove the presence of spermatozoa, as penetration was not required to be complete. 30.Section 2 of the Sexual Offences Act defined “penetration” as the partial or complete insertion of the genital organs of one person into the genital organs of another person. 31.The law was now settled that the slightest penetration was sufficient to prove this ingredient. Complete penetration or the presence of spermatozoa was, thus not a prerequisite for the prosecution to prove the offence of rape as the Court of Appeal held in the case of Mark Oiruri Mose vs Republic (2010) (Supra). 32.In Fappyton Mutuku Ngui vs Republic (2014) KECA 570 (KLR), the Court of Appeal held that penetration could be proved by the evidence of the complainant alone, provided that the court believed such evidence. It added that although medical evidence was desirable, it was not the only means by which penetration could be established. 33.Notably, the evidence that the Prosecution witnesses tendered was consistent with the essential ingredients of penetration. PW 3 testified that upon examining PW 1, the laboratory analysis revealed the presence of spermatozoa. The medical findings that were proven by the P3 Form, PRC Form, treatment notes and laboratory results that he produced as exhibits were consistent with PW 1’s testimony that she had been sexually assaulted. 34.Going further, not every discrepancy rendered a prosecution case unreliable. The question was whether the inconsistency was material and went to the root of the charge. The contradictions and inconsistencies the Appellant raised regarding the contradictions in PW 1’s and PW 5’s evidence were not of such a material nature as to have weakened the Prosecution’s case relating to penetration. 35.The court was guided by the principle that contradictions in the evidence of prosecution witnesses had to be considered in the context of the entire evidence. Indeed, as was held by the Court of Appeal in the case of Philip Nzaka Watu vs Republic [2016] eKLR, only contradictions which materially affected the prosecution case could justify interference of a conviction. 36.Turning to the issue of exhibits, the law did not require the production of every exhibit recovered during investigations if the available oral and medical evidence sufficiently established the ingredients of the offence of rape. Bottom of Form The absence of the used condom and the failure by the Prosecution to produce the clothes that were recovered from him was, therefore, not an omission that was fatal to its case. The Appellant’s assertions regarding the missing exhibits did not thus, displace the Prosecution’s evidence or create reasonable doubt as to whether penetration occurred. 37.This court was not persuaded by the Appellant’s submissions that the Trial Court shifted the burden of proof to him as contemplated in Section 111 (1) of the Evidence Act. It was clear that the legal burden remained with the Prosecution throughout the trial. The Trial Court correctly evaluated the Appellant’s defence against the totality of the evidence that was presented before it and found it to have been a mere denial. 38.Having independently re-evaluated the evidence on record, this court was not satisfied that the Appellant’s defence created reasonable doubt in the mind of this court. On the other hand, this court was satisfied that PW 1’s testimony and the medical evidence that was adduced by PW 3 established the ingredient of penetration beyond reasonable doubt. 39.Consequently, this court found that the Prosecution proved the ingredient of penetration as required under Section 3 (1) of the Sexual Offences Act beyond reasonable doubt. C. Consent 40.Having found that the Prosecution proved the ingredient of penetration, it the next issue to determine was whether PW 1 consented to the act of penetration. 41.The Appellant relied on the case of Phili Nzaka Watu vs Republic (Supra) where the Court of Appeal held that contradictions in the evidence of prosecution witnesses were material unless they were satisfactorily explained. He submitted that those inconsistencies weakened the Prosecution’s assertion that the sexual encounter was non-consensual. 42.On its part, the Respondent argued that the Prosecution had also proved beyond reasonable doubt that PW 1 did not consent to the sexual act. It relied on Sections 42 and 43 of the Sexual Offences Act and submitted that she testified that the Appellant hit her, gagged her mouth with his hand, threatened to kill her if she resisted, removed her hand that was covering her vagina and thereafter penetrated her as she screamed for help. 43.It averred that the circumstances described demonstrated that the act was committed by force and intimidation and therefore fell within the circumstances contemplated under Sections 42 and 43 of the Sexual Offences Act. It further submitted that the Trial Court had the advantage of observing PW 1’s demeanour and found her to have been a credible witness whose evidence remained firm even during cross-examination. It was emphatic that the Prosecution witnesses gave consistent and mutually corroborative evidence on the material ingredients of the offence. 44.In the case of Republic vs Francis Otieno Oyier (1985) KECA 55 (KLR), the Court of Appeal held that lack of consent was an essential ingredient of the offence of rape and that where a woman yielded through fear of death or duress, the act amounted to rape notwithstanding any purported consent. The court therein further held that the prosecution was required to establish that the complainant either physically resisted or that the circumstances were such that he or she was incapable of making a free and voluntary choice. 45.Section 42 of the Sexual Offences Act states as follows:-“For the purposes of this Act, a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice.” 46.Section 43 of the Sexual Offences Act further provides as follows:-1.An act is intentional and unlawful if it is committed—a.in any coercive circumstance;b.under false pretences or by fraudulent means; orc.in respect of a person who is incapable of appreciating the nature of an act which causes the offence.1.The coercive circumstances, referred to in subsection (1)(a) include any circumstances where there is—a.use of force against the complainant or another person or against the property of the complainant or that of any other person;b.threat of harm against the complainant or another person or against the property of the complainant or that of any other person; orc.abuse of power or authority to the extent that the person in respect of whom an act is committed is inhibited from indicating his or her resistance to such an act, or his or her unwillingness to participate in such an act. 47.Although the Appellant challenged the credibility of PW 1’s testimony, his defence was that he had become heavily intoxicated after leaving the bar and could not remember what transpired thereafter. He did not assert that the sexual intercourse, if any, was consensual. On the other hand, PW 1 consistently testified that she resisted his advances, screamed for help, and that she was assaulted and threatened with death before the penetration occurred after he forcibly removed her hand from covering her vagina. 48.Having independently evaluated the evidence, this court found that PW 1’s testimony, disclosed circumstances indicative of force, threats, and resistance, were inconsistent with free and voluntary consent as contemplated under Sections 42 and 43 of the Sexual Offences Act. It was evident that she did not consent to the act of penetration. The Prosecution had discharged its burden of proof, and the conviction was therefore safe. 49.In the premises foregoing, Grounds of Appeal No (1), (2), (3), (4), (5) and (6) were not merited and the same be and are hereby dismissed. II. Sentence 50.The Appellant did not raise the ground on the legality or otherwise of the sentence that was meted upon him as a ground of appeal. His Petition of Appeal and Written Submissions seemed to challenge the basis of the conviction only. He only prayed that the sentence be set aside should the appeal succeed. 51.The Respondent submitted that the sentence of ten (10) years’ imprisonment was lawful, being the minimum sentence prescribed under Section 3 (3) of the Sexual Offences Act. It relied on the principle that sentencing was a matter within the discretion of the Trial Court and that an appellate court ought not to interfere with that discretion unless it was demonstrated that the trial court acted on wrong principles, overlooked material factors, or that the sentence was manifestly excessive or inadequate. 52.It further submitted that there was no basis for interference by this court as the sentence the Trial Court meted upon the Appellant herein was the statutory mandatory minimum and relied on the case of Ogola S/o Owuora vs R (1954) 21 EACA 270 in this regard. It pointed out that the Trial Court could also have enhanced the said sentence to imprisonment for life. 53.Section 3 (3) of the Sexual Offences Act Cap 63 A (Laws of Kenya) provides as follows: -“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” 54.The principles governing appellate interference with sentence were well settled. In the case of Nillson vs Republic (1970) E.A. 599, the court therein reaffirmed the principle in the case of James vs Rex (1950) 18 EACA 147 where it was held that an appellate court would not interfere with the exercise of sentencing discretion unless the trial court acted on a wrong principle, overlooked a material factor, or imposed a sentence that is manifestly excessive in the circumstances. 55.As the Trial Court meted upon the Appellant the mandatory minimum sentence, this court could not therefore fault the Trial Court for having sentenced him to ten (10) years’ imprisonment as that was lawful. 56.Going further, this court was mandated to consider the period the Appellant spent in remand while his trial was ongoing as provided in Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) that states that: -“Subject to the provisions of section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this CodeProvided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody” (emphasis court). 57.Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that: -“The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing: … Time already spent in prison by the convict…” 58.The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR. 59.A perusal of the Charge Sheet indicated that the Appellant was arrested on 1st July 2021. Although he was granted bail, he did not appear to have posted the same. He was sentenced on 26th August 2024. The period that he spent in custody while his trial was ongoing ought to have been taken into account in line with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). Disposition 60.For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal dated 9th September 2024 was not merited and the same be and are hereby dismissed. His conviction be and is hereby quashed and sentence be and is hereby upheld as they were both safe. 61.However, for the avoidance of doubt, the period that the Appellant spent in custody between 1st July 2021 and 25th August 2024 be and is hereby taken into account in line with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) while computing his sentence. 62.It is so ordered. DATED AND DELIVERED AT NANYUKI THIS 29TH DAY OF JULY 2026J. KAMAUJUDGE