https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1644

Abduwahab v Republic (Criminal Appeal E140 of 2023) [2026] KECA 1644 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1644 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Appeal E140 of 2023 PO Kiage, J Mohammed & MB Kairaria, JJA July 31, 2026 Between Tariq Abduwahab Appellant and Republic Respondent (An appeal against conviction and sentence from judgement of the High Court of Kenya at Garissa (Abida Ali-Aroni, J.) delivered on 18th November 2021inHigh Court Criminal Appeal No. 29 of 2020) Judgment 1.The appellant, Tariq Abduwahab was on 4th November 2019 arraigned before the Senior Principal Magistrate’s Court at Mandera in SO Case No. 28 of 2019 charged with the offence of gang rape contrary to Section 10 of the Sexual offences Act No 3 of 2006. The particulars of the offence were that on the 25th day of September, 2019 at [Particulars Withheld] in Mandera Central Sub County in association with Ibrahim Adow Alio, the appellant intentionally and unlawfully caused his male genital organ to penetrate the female genital organ of N.T without her consent. 2.The appellant also faced an alternative charge of committing an indecent act with an adult contrary to Section 11[A] of the Sexual Offences Act No. 3 of 2006.The particulars of the alternative charge were that on 25th day of September, 2019 at [Particulars Withheld] in Mandera Central Sub-County within Mandera County, the appellant intentionally touched the female genital organ of N.T with his male genital organ against her will. 3.When the charges were read out to the appellant before Hon.P.N Ireri [P.M] the appellant pleaded not guilty and the case proceeded to trial before Hon. P.W Wasike [SRM]. But the course of the trial did not run smoothly for the prosecution. Only the complainant N.T testified. The other witnesses for the prosecution, including the appellant’s uncle and aunt who rescued the complainant and gave her clothes on the fateful night, the investigating officer [PC Kevin Wafula] and Dr. Ali of Elwak Sub County hospital who examined the complainant, did not attend court to testify despite being summoned on several occasions. A warrant of arrest was issued against the investigating officer but it was not executed by the OCS Elwak police station. The prosecution was forced to close its case without the evidence of the investigating officer and the doctor after its last plea for adjournment was declined on 29th October, 2020. 4.From the record we gather that the complainant was a young 19-year-old Ethiopian maiden of Borana origin and was the sole witness for the prosecution. She testified on 17.2.2020. Briefly, her evidence was that she was employed by the appellant’s uncle to work at his home in Bulla Afya. On 26. 9.2020 she was on her way to buy airtime when she met Ibrahim and Tariq [the appellant] at around 8.00 PM. The duo held her and took her to a house which the two had rented, where they forced her to lie on the cement floor. Ibrahim then stepped on her neck and covered her mouth with one hand so that she could not scream, while pushing her face down with the other hand. She was wearing a dera and a panty which they removed. Tariq the appellant “did a bad act” to her. He “did bad manners to her”. He took his thing, meaning penis, and put it in her private part [vagina]. He did it twice. She did not permit him to do it. Ibrahim beat her with a fist while Tariq said they would kill her and throw her into a hole if she reported them. Tariq’s uncle and his wife appeared on the scene. The latter brought her clothes as she was stark naked. Tariq and Ibrahim ran out. The following morning she was taken to the Chief who saw her blood stained clothes and took her to Elwak police station where she recorded a statement after coming from the hospital. The KPR and the Chief arrested the appellant and his co-accused after they were pointed out by the appellant’s uncle. 5.She testified that she identified and recognised the appellant and his co-accused, and though the house they led her to was not lit, they had a torch which they put on the table to illuminate the house. It faced where she lay on the floor. 6.Cross-examined by the appellant the complainant maintained that she had told the truth. She denied that the appellant was her husband but stated that she had been forced to sleep with him the previous day. She added that she did not agree to sleep with the appellant and it was the appellant’s aunt who arranged for her to sleep and have sex with the appellant. She admitted that she was carrying the appellant’s pregnancy which was at the time one month old. She denied that she had agreed to withdraw the case so that she would go and stay with the appellant as husband and wife and stated that they were not married. 7.Upon cross-examination by Ibrahim [the 2nd accused], the complainant confirmed that she personally knew him very well because he was a frequent visitor to her employer Tariq’s uncle, that the hour they met on the fateful night was 8.00PM, and she maintained that he held her down and covered her mouth and that is why she did not scream. 8.Upon re-examination the complainant testified that she did not do a wedding with Tariq, the appellant and explained that the appellant destroyed her mobile sim card the previous Christmas while Sahara, his aunt took her bag and was planning for her wedding with Tariq without her knowledge, and she knew that her home is in Ethiopia. 9.Following her testimony, the complainant was repatriated to Ethiopia on 17th February, 2020 and the prosecution case was closed and the defence case heard in her absence. In his defence the appellant stated that the case had been “fixed on him” meaning it was fabricated, he did not know the case, he is a poor orphan, he did not commit the offence and was innocent, does not live with the complainant in the same village and did not know the complainant. On cross- examination the appellant stated that he was not with the complainant on the alleged date, never saw the girl on that day, and he recalled asking the complainant a question in court but could not remember what it was about. 10.At the conclusion of the trial, the learned magistrate convicted the appellant on the main count in a judgement delivered on 3.12.2020, and sentenced him to 30 years imprisonment. The trial court exonerated the appellant’s co- accused on both counts there being no evidence that he had touched the genital organs of PW1 using his hands or genitals and no evidence having been led in support of the alternative count. No finding was made on the alternative charge against the appellant. 11.Dissatisfied with the decision of the lower court the appellant appealed against both conviction and sentence at the High Court at Garissa in HCCR NO. 29 of 2020 on seven grounds in which he faulted the magistrate for committing diverse mis-directions of law and facts. In particular the appellant complained that the learned magistrate relied solely on the evidence of the victim without corroboration, convicted the appellant without a medical report of a doctor, failed to appreciate that the prosecution had not proved its case beyond reasonable doubt, failed to notice glaring inconsistencies in the evidence tendered by the complainant, convicted based on half-truths and in the face of divergence between the date of the commission of the offence in the charge sheet and that stated by the complainant in her evidence at the trial. 12.The learned judge of the High Court [A. Ali -Aroni J, as she then was] upon a thorough re-evaluation and reconsideration of the evidence concluded that the ingredients of the offence of rape had been proved beyond reasonable doubt notwithstanding that the prosecution was not able to attract witnesses and was in fact frustrated by interference from the appellant and his relatives. She dismissed the appeal and upheld both conviction and sentence in a judgement dated 18th November, 2021. On the need for corroboration in sexual offences, the court was satisfied that the complainant was truthful and, because the case involved a sexual offence, corroboration though necessary was not mandatory. The court cited Bernard Kebiba vs. Republic [2000] KECA158[KLR] where it was held that there is requirement for corroboration in all sexual offences in our courts but “it is a rule of practice only, which has not acquired the force of law and in appropriate circumstances, the court may convict without corroboration, so long as the trial court is satisfied that the complainant is speaking nothing but the truth’’, with the caveat that “a court in such a situation must warn itself of the danger of basing a conviction upon the uncorroborated evidence of the complainant.’’ 13.On the absence of medical evidence, the learned judge cited this Court’s dicta in Kassim Ali vs. Republic Criminal Appeal NO.84 of 2005[2006] eKLR to the effect that: “the absence of medical examination to support the fact of rape is not decisive as the fact can be proved by oral evidence of a victim or by circumstantial evidence.’’ The first appellate court did not find the inconsistencies outlined by the appellant material as would make his conviction unsafe. In this regard the court cited the case of Philip Nzaka Watu vs. Republic [2016] eKLR where this Court held, inter alia that: “Ultimately, whether discrepancies in evidence render it unbelievable must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.’’ 14.The first appellate court found that the appellant was positively identified by the complainant and his own conduct in the aftermath of the rape pointed to him as the perpetrator and concluded that the conviction was proper. 15.On sentence, the learned judge found that the appellant was certainly deserving of the sentence of 30 years imprisonment. It was a matter within the discretion of the trial court and the fact that the dehumanizing act committed by the appellant on the complainant in the first instance and subsequently raping her a second time, impregnating her and trying to compromise her by way of Maslah[a traditional dispute settlement system] and attempting to marry her forcefully all weighed against the appellant. Accordingly, the learned judge dismissed the first appeal and upheld the trial court on both conviction and sentence. 16.Dissatisfied with the dismissal of his appeal and undeterred by the concurrent findings of the two courts below, the appellant lodged this second appeal. He first filed a notice of appeal dated 27th October, 2022. In his undated amended grounds of appeal and written submissions, the appellant posits three grounds of challenge for consideration by this Court and urges us to; find that both courts erred in law, allow the appeal, quash the conviction, set aside the sentence and set him at liberty. Essentially the appellant contends that the two courts below erred:a.in convicting him without corroboration of medical evidence of forensic and scientific nature and contravened Section36[1] of the Sexual Offences Act;b.failed to consider that some crucial witnesses never testified in court thereby contravening Section 150 of the Criminal Procedure Code; andc.sentencing the appellant to 30 years imprisonment without granting him the benefit of the lesser sentence of fifteen 15 years provided under Section 10 of the Sexual offences Act thereby contravening his fair trial rights under Art. 50[2] [p] of the constitution of Kenya 2010. 17.We heard the appeal on 25th February 2026. The appellant appeared in person at the virtual hearing and relied on his written submissions to support the appeal, while learned counsel Njoki Kengáara, Principal Prosecution Counsel appeared for the Respondent and relied on her written submissions dated 20th February, 2026 in opposition to the appeal. 18.We have carefully considered the grounds of appeal, the record of appeal, the parties’ rival submissions and the cited case law. This being a second appeal our jurisdiction is narrowly circumscribed by dint of Section 361[1] [a] of the Criminal Procedure Code which requires that we deal with matters of law only. Severity of sentence is reckoned as a matter of fact within the scope of Section 361[1] CPC. [See Kemunto vs. Republic [2026] KECA 169[KLR]. 19.The appellant first submitted on the question of sentence and contended that both courts failed to observe that section 10 of the Sexual Offences Act provides prison terms ranging from 15 years to life imprisonment and he was entitled to the benefit of the lesser sentence in line with Article 50[2][ p] of the Constitution, which provides that every accused person has the right to a fair trial which includes the right to the “benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.” 20.On its part, the respondent submitted that sentencing is a matter in the discretion of the trial court and sentence is dependent on the facts of each case. Citing the case of Benard Kimani Gacheru vs. Republic [2002] eKLR counsel submitted that an appellate court will not lightly interfere with the sentence unless it is shown that: i] the sentence is manifestly excessive in the circumstances of the case or; ii] the trial court overlooked some material factor; iii] took into account, some wrong material; or iv] acted on a wrong principle. In the instant case, the circumstances warranted and the law permitted it considering that the maximum sentence permitted by law is life imprisonment. 21.In our considered view the appellant’s argument on his first ground of appeal is legally flawed and untenable. It stems from a misapprehension of the true meaning and purpose of Article 50[2] [p]. That article would only have benefited the appellant if a lesser punishment had been prescribed between his being charged and being convicted for the offence of rape. This is not the case here. The fifteen years minimum sentence under section 10 has coexisted with the maximum penalty of life imprisonment for the offence of rape, with the trial court being granted the latitude to impose a sentence within the prescribed range according to the dictates of the peculiar factual circumstances of each given case. Besides, this Court has no jurisdiction to revise sentence on a second appeal where the first appellate court has not enhanced or interfered with the sentence passed by the trial court. In the case of offences under the sexual offences Act, the Supreme Court has bindingly held that we have no jurisdiction to interfere with sentence prescribed under the Act. [See Republic vs. Manyeso [petition E013 of 2024] [2025] KESC16[KLR] and Republic vs. Joshua Gichuki Mwangi &Initiative for Strategic Litigation in Africa[ISLA] & 3 Others Amicus Curiae [Petition No. 18 of 2023] [2024] KESC 34[KLR]. This ground of appeal thus fails. 22.On the second ground, the appellant submitted that the two courts below contravened Section 36[1] of the Sexual Offences Act because the evidence of the complainant was not corroborated by medical evidence. According to him Section 36[1] required the trial court to direct that forensic and other scientific testing including a DNA test of the accused person be undertaken, in order to ascertain whether or not the accused person committed an offence and to the extent that no direction in that regard was made this left gaps in the prosecution case as no semen was taken from him and compared with that found in the complainant’s vagina. 23.The appellant added that corroboration is an important aspect and that the only evidence of corroboration that sexual intercourse having taken place and the corresponding identity of the perpetrator is medical evidence. In his case he submitted there was only the evidence of the complainant that he raped her and no medical evidence was tendered to connect him with the crime of rape. He cited the case of Mutonyi vs. Republic [1982] KLR and R vs. Manilal Ishwerlal Purohit[1942] 9 EACA, 58, 61. 24.The respondent’s counsel submitted that the two courts below were satisfied that the victim’s testimony, which was found to be truthful and credible, was sufficient to establish the appellant’s guilt under the proviso to Section 124 of the Evidence Act even without corroborative evidence. Regarding the lack of medical evidence, counsel cited Kassim Ali vs. Republic [2006] eKLR and submitted that the absence of medical examination to support the act of rape is not decisive and the fact of rape can be proved by oral evidence of a victim of rape or by circumstantial evidence. Counsel added that in the instant case the complainant had tendered reliable evidence and it was on record that there was interference with the prosecution case and attempts to compromise the complainant by the appellant while out on bond. In the end counsel urged us to uphold the concurrent findings of the two courts below and dismiss the appeal. 25.We have independently reviewed the record of the proceedings before the two courts below and are satisfied that the appellant was properly convicted and sentenced. The evidence of the complainant was reliable, consistent and compelling. She is to be applauded for her courage and resilience to uphold her dignity and have her brutal rapist brought to book and held to account despite the community and systematic frustrations placed in her path to justice. There was uncontroverted evidence that the appellant had sex with the complainant without her consent first when the appellant raped her while she was held by Ibrahim; an act that was witnessed by the appellant’s uncle and aunt and on two other occasions in December consequent to which she conceived and just a day before she testified before the trial court. Indeed, the appellant’s line of questioning during cross-examination left no doubt that he committed the act of penetration on several occasions and impregnated her. His bare faced denial in his defence did not displace the complainant’s compelling evidence against him at all. Her evidence was sufficient and needed no additional corroborative evidence to found a proper and lawful basis for the conviction of the appellant for the offence of rape. 26.In the upshot, we find no merit in the appellant’s appeal and accordingly dismiss it. The appellant deserves the sentence handed down to him. Let him continue serving it. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.P. O. KIAGEJUDGE OF APPEAL.........................................JAMILA MOHAMMEDJUDGE OF APPEAL.........................................MURUNGI B. KAIRARIAJUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR