https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8336

Njoki v Republic (Criminal Appeal E062 of 2025) [2026] KEHC 8336 (KLR) (Crim) (15 June 2026) (Judgment) Neutral citation: [2026] KEHC 8336 (KLR) Republic of Kenya In the High Court at Nyandarua Criminal Criminal Appeal E062 of 2025 KW Kiarie, J June 15, 2026 Between Wilson Chege Njoki Appellant and Republic Respondent (From the original conviction and sentence in S.O. Case No. E063 of 2024 of the Senior Principal Magistrate’s Court at Ol Kalou by Hon. Judicaster Nthambi Nthuku –Senior Principal Magistrate) Judgment 1.Wilson Chege Njoki, the appellant herein, was convicted of the offence of rape contrary to section 3(1) as read with section 3 (3) of the Sexual Offences Act No.3 of 2006. 2.The particulars of the offence were that on the 1st day of December 2024 at Ol Kalou town in Nyandarua Central sub-county within Nyandarua County, he intentionally and unlawfully caused his penis to penetrate the vagina of ENK without her consent. 3.The appellant received a ten-year prison sentence and, feeling aggrieved, appealed both the conviction and sentence. He was represented by J.K. Karanja & Company Advocates and presented the following grounds for his appeal:a.The learned trial court erred in law and fact by convicting the appellant when the prosecution failed to prove the charge of rape beyond a reasonable doubt.b.The learned trial court erred in law in relying solely on the complainant's unsupported evidence despite contradictions and a lack of medical corroboration.c.The medical findings did not support recent penetration or injuries, yet the court treated them as supportive of rape.d.The learned magistrate erred in law by wrongly dismissing the defence of alibi for being raised late, contrary to the law that an accused has no burden to prove an alibi.e.The learned trial court erred in law and fact in using ambiguous plea remarks as an admission despite the accused pleading not guilty.f.The learned magistrate erred in law when she demanded receipts from the appellant to prove his alibi, thereby shifting the burden of proof.g.The learned magistrate ignored material contradictions and inconsistencies in the prosecution's case that created reasonable doubt.h.The sentence of ten (10) years was harsh in the circumstances and contrary to sentencing principles. The sentence issued by the honourable court is manifestly harsh and excessive. 4.The respondent opposed the appeal represented by M/s Odero Vena, the prosecution counsel. She argued that the evidence sufficiently proved the offence and that the sentence was suitable. 5.This is a first appellate court. As expected, I have analysed and evaluated all the evidence adduced before the lower court. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs the Republic [1972] EA 32. 6.The ingredients of the offence of rape are set out in section 3 of the Sexual Offences Act, which states as follows: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. 7.ENK (PW1), the complainant, testified that the appellant was supposed to connect her with an employer in Nyahururu. On December 1, 2024, around 9 p.m., he called and said he wanted to take her to her prospective employer in Nyahururu. He explained the employer had just returned from Mombasa and would be travelling to Nairobi. She directed him to her location, and he came to pick her up. He told her they would retrieve his vehicle from the garage. 8.When they reached the garage where the vehicle was parked, the accused greeted her and told her that it wasn't a work-related matter but that he wanted to have sex with her. He therefore raped her, and after the incident, she went home, and her sister took her to the hospital at 1 a.m. 9.Joseph Gatheca (PW4), a clinical officer at J.M. Kariuki Hospital, testified that he examined the complainant on December 2, 2024, after she reported a rape. He observed a mucoid vaginal discharge and a bruise on her right elbow joint. He concluded that rape was possibly involved. 2.Wilson Chege Njoki, the appellant, denied the allegations and presented an alibi defence. He called his wife, who corroborated his claim. Whenever an accused raises an alibi defence, they do not assume any burden to prove that it is the truth. This was stated in the case of Kiarie vs Republic [1984] KLR, where the Court of Appeal held:An alibi raises a specific defence, and an accused person who puts forward an alibi as an answer to a charge does not, in law, thereby assume any burden of proving that answer, and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable. 10.In the instant case, the accused contended that he never left his house at the material time of the offence. This, however, was contradicted by his statement during plea-taking. This is what he informed the trial court:Si kweli, nilikuwa nimelewa ndio nikafanya bila idhini yake. This translates to English as:"It's not true, I was drunk, that is why I did it without her consent."This, therefore, displaced his alibi defence. The finding of an injury on the complainant's elbow corroborated her contention that she had not consented. 11.The appellant argued that the sentence was too harsh. An appellate court will only intervene in the trial court's sentence if there are substantial reasons to justify altering the original decision. These reasons were clearly demonstrated in the case of Nillson vs Republic [1970] E.A. 599, as follows:The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence, and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v Rex (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor. To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R v Shershewsity (1912) C.CA 28 T.LR 364. 12.Section 3 (3) of the Sexual Offences Act provides the sentence for the offence of rape in the following terms: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. 13.The appellant received the minimum prescribed sentence. There is no evidence that the trial magistrate applied any incorrect principles or ignored important facts. I see no reason to alter the sentence. 14.The appeal lacks merit and is, therefore, dismissed. DELIVERED AND SIGNED AT NYANDARUA, THIS 15TH DAY OF JUNE 2026KIARIE WAWERU KIARIEJUDGE