https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11484

Nyanguga v Republic (Criminal Appeal E027 of 2026) [2026] KEHC 11484 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEHC 11484 (KLR) Republic of Kenya In the High Court at Migori Criminal Appeal E027 of 2026 ACA Ong’injo, J July 2, 2026 Between Wycliffe Omollo Nyanguga Appellant and Republic Respondent (Being an appeal from the judgment of Hon. C. N. C. Oruo PM delivered on 27th April, 2026 in Rongo SOC No. E027 of 2024) Ruling 1.The Appellant was charged with the offence of rape contrary to Section 3(1) (a)& (c) of the Sexual Offences Act No. 3 of 2006. 2.The particulars are that the Appellant on the 30th Day of July, 2024 at around 230.00hrs at [Particulars Withheld] Township in Rongo Sub-County within Migori County intentionally and unlawfully caused his penis to penetrate the vagina of CIO without her consent. 3.In the 2nd Count the Appellant was charged with the offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code 4.The particulars are that the Appellant on the 30th Day of July, 2024 at around 230.00hrs at [Particulars Withheld] Township in Rongo Sub-County within Migori County. he unlawfully assaulted CIO thereby causing her actual bodily harm. 5.Upon consideration of the evidence of 6 prosecution witnesses and the sworn statement of the Appellant, the Trial Magistrate found that the Appellant was guilty of the charges in the two counts and he was convicted and consequently sentenced to serve 10 and 5 years imprisonment respectively to run concurrently. 6.Being aggrieved by the conviction and sentence the Appellant lodged the appeal herein Petition of Appeal dated 2026 on the following grounds:-1.That the Trial Magistrate erred in law and fact by failing to allow the Complainant to withdraw the charges under Section 204 of the CPC despite her clear and express desire to do so2.That the Trial Magistrate erred in both law and facts by relying on evidence of a Complainant whose testimony was obtained through state coercion including her unlawful remand at Migori Women GK Prison which rendered her evidence unreliable and unsafe to sustain a conviction3.That the Learned Trial Magistrate erred in failing to find that the prosecution did not prove the essential element of lack of consent beyond reasonable doubt, especially given the established intimate relationship between the Appellant and the Complainant and the fact that both were under the influence of alcohol.4.That the Learned Trial Magistrate erred in both law and facts by failing to properly evaluate the Appellant’s defence, which raised plausible doubt as to the voluntariness and nature of the sexual act.5.That the Trial court erred in principle by ordering the sentences of 10 years and 5 years to run consecutively rather than concurrently, resulting in a total sentence of 15 years which is hars, excessive and disproportionate in the circumstances of this case.6.That the medical report exonerated the Accuse of any wrong doing as the report indicated that the Complainant tested positive for 3 diseases as a result of rape while the accused tested negative on the same7.That the Learned Trial Magistrate erred by failing to consider the mitigating factors presented including the Complainants wish for reconciliation, which should have led to a more lenient non-custodial or concurrent sentence.Reasons wherefore the Appellant prayed that:-a.The appeal be allowedb.That the conviction be quashed and sentence set asidec.Re-trial orderedd.In the alternative, the sentence be reduced and ordered to run concurrently. 7.The Appellant also filed application dated 2nd June,2026 concurrently with the appeal seeking to be released on bond pending appeal. The application was premised on the grounds on the face of the application and supporting affidavit sworn by the Applicant on 2nd June 2026. 8.The Prosecuting Ms. Ndombi informed the court that having considered the proceedings in the lower court she had no objection to the application for bond pending appeal. 9.In the circumstances of the Respondent Counsel conceding to the application and having considered the application and the records of the trial court the application for bond pending appeal is allowed. The Appellant may be released on bond of Kshs500,000/= with one surety of similar amount. 10.The appeal herein will be mentioned on 27th July 2026 before the DR to confirm ROA filed and served and the trial court file availed for purposes of admission and directions. 11.It is so ordered. DATED, SIGNED AND DELIVERED AT MIGORI THIS 2ND DAY OF JULY, 2026.HON. ANNE ADWERA- ONG’INJOJUDGEIn the Presence of:Victor – Court Assistant