https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8208

Wairimu v Republic (Criminal Appeal E091 of 2024) [2026] KEHC 8208 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 8208 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E091 of 2024 DKN Magare, J June 3, 2026 Between Peter Waweru Wairimu Appellant and Republic Respondent Judgment 1.This appeal arises from the Judgment of the trial court, Hon O. Wanyaga (Principal Magistrate) in Kigumo PMSO No. E071 of 2021 delivered on 03.12.2024. 2.The Appellant was charged with rape contrary to Section 3(1)(3 ) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 18.10.2021 at [Particualrs Withheld] in Murang’a south Sub-county of Murang’a County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of GWN by use of force. 3.There was also an alternative charge of committing an indecent act with an adult contrary to Section 11(A) of the Sexual Offences Act, 2006. The particulars of the offence were that on 18.10.2021 at [Particualrs Withheld] in Murang’a south Sub-county of Murang’a County, the Appellant intentionally and unlawfully touched the vagina of GWN against her will. 4.The matter was heard and concluded. The appellant was sentenced to 10 years imprisonment. It is not clear when the sentence is to commence. The appellant appealed and set forth the following grounds of appeal:a.That I am poor and I cannot afford money for the appeal fee.b.That I wish to be present during the hearing of my appeal. Proceedings and Evidence 5.The Appellant was arraigned in court on 16.11.2021, and denied the charges before K. Sambu (SPM). He was granted Ksh. 50,000/= bond with alternative cash bail of KSH 20,000/=. The cash bail was reviewed to Ksh. 10,000/=. The matter was set for hearing before Hon. Agade (SRM). 6.The complainant testified as PW1. On 18.10.2021, she was not feeling well and stayed at home. At 2100 hours, the headache was too much. She got out and went to the shop. On her way, she saw Waweru who passed and greeted her. In the process he pushed her and she fell. He grabbed her neck so that no scream came out. He put his hands under her dress and removed her panties. 7.He penetrated her with three thrusts and on the third, he got up and left. He was strangling her with one hand and was removing a panty with the other hand. When he was done, he put on his clothes and walked away. Her children are young, so she did do tell them anything. The following day she woke up and went to the police station and reported. She did not tell anyone at the accused family but her relative knew. She went to Maragua Hospital. The incident took about an hour as they struggled. She knew the appellant as they called each other by name. The appellant was in a reflector jacket and there was moonlight. The appellant works opposite where she works. The appellant penetrated her with his penis. She identified the appellant in the dock. 8.On cross examination, she stated that she had a husband. She stated that she did not speak to Wamboka about the incident. She stated that the appellant choked her with one hand while removing the panty with another. She did not scream as she was being chocked. She did not scream after as he had gone away. She stated that the reflector jacket was for work but she did not read what was written on it. She had taken a shower when she went to the police station. She denied that the appellant took her to hospital to see her son. She denied having a grudge with him. The son lived in a rental house and not with the complainant. She denied that the appellant had bought alcohol resulting in the incident. She denied threatening the appellant with jail term. She stated that she did not disobey the headman. 9.She stated that she did not know who Wamboka was. She did not have any other dispute before the case. Subsequently, the charge of attempted rape was changed to rape and the appellant pleaded not guilty. 10.PW2 was Anthony Mwangi from Murang’a Hospital as a county Clinical Officer. He is an ENT specialist. He saw the 70-year-old Grace Warui on 19.10.2021 with a history of someone who attempted to defile her. The person attempted to insert the penis but did not manage to rape her. The private parts had no injuries, no lacerations, blood, tears, or dirt. All tests were normal. 11.On cross examination he stated that the person tried to rape her but did not succeed. They followed the history. He stated that he cannot decide whether the appellant was framed. 12.PW3 was PC Lydia Kamui of Maragua Police Station and the investigating officer. She stated that the complainant reported a rape case, that she was raped on 18.10.2021 at 2300 hours. The complainant was examined. She stated the person who raped her was Peter Waweru. Medical documents were filed in the hospital. They went to the construction company and arrested the appellant. She stated that the complainant stated that she had a toothache and went to buy painkillers and was waylaid on the way home. She stated that the appellant called her by Mama Mbaya and that is when she fell and was raped. The complainant stated that she was 57 years old. The appellant strangled with her. The accused was arrested on 12.11.2021. 13.She stated that before the arrest other medical reports confirmed the rape. The scene was near houses, a gate, and maize planted. On cross examination, she stated that she relied on the doctor’s evidence and the torn pants. She did not have reasons to doubt the complainant. The prosecution case was closed. 14.The court gave an unnecessarily long ruling on a case to answer. The defendant was placed on his defence. A new magistrate took over. Rights under Section 200 were explained to the appellant. He chose to proceed from where the matter had reached. 15.The defence opted to give unsworn statement. He stated that he did not commit the offence. He used to do bodaboda business with the complainant’s son. She claimed that the appellant made her son a drunkard. 16.The court found the appellant guilty of rape and sentenced him to 10 years imprisonment. There was no compliance with Section 333(2) of the Criminal Procedure Code. Submissions 17.The Appellant filed undated submissions. He relied on an old and unreliable decision, which I don’t find it necessary to set out herein. The evidence was that of a single witness. The complainant had told the court that the assailant did not manage to defile her. She gave the clinical officer history of attempted rape; the complainant is thus a liar to change her story later. Reliance was based on the case of Augustino Njoroge Ritho alias Chabah & Another -versus- Republic Criminal Appeal No. 99 of 1986 (Nairobi) and Kimanyi v Republic [1979] KECA 5 (KLR). In the latter case the court of appeal [Madan, Miller & Potter JJ A] held as follows:We lay down the minimum standard as follows. The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the Court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence. 18.He also submitted that he stayed in custody for long without bond. 19.The Respondent submitted that there was penetration. Reliance was on Section 2(1) of the Sexual Offences Act. They submitted that there was no consent given from the evidence. They struggled for an hour and as such she saw the appellant through the moonlight. They stated that the court can convict on basis of evidence of a single witness on basis of section 124 of the Evidence Act. 20.They submitted that there were no major inconsistencies. Minor inconsistence is not fatal to the case. Reliance was made on the case of Musyoki V Republic (2022) eKLR. The issue of being framed was said to have been vehemently denied by the complainant under cross examination. The court was urged to dismiss the appeal. Analysis 21.This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 22.On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra], the East Africa Court of Appeal stated on the duty of the court on a first appeal:An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. 23.The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues. 24.Brennan J addressed the standard of proof required in such cases, in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 that:The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 25.Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice. 26.The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:382:subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. 27.Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case. 28.Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The standard of proof beyond reasonable doubt applies, particularly given the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carries a lifelong stigma and can only be justified based on indisputable evidence. 29.This court dealing with the instant appeal is entitled to consider the evidence in the trial court as a whole as being submitted afresh to be subjected to exhaustive examination to guide the court towards its own decision on the evidence. In Kiilu & Another vs. Republic [2005]1 KLR 174, the Court of Appeal stated as follows:-1.An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.2.It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses. 30.The issue for this court’s determination is whether the prosecution proved the offence of rape against the Appellant beyond reasonable doubt. 31.The offence of rape is created under Section 3 of the Sexual Offences Act as follows:1.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; orc.The consent is obtained by force or by means of threats or intimidation of any kind.2.In this section the term "intentionally and unlawfully" has the meaning assigned to it in section 43 of this Act.3.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 32.Proof beyond reasonable doubt does not impose a standard of proof beyond the shadow of a doubt. Where the evidence tendered is so strong as to leave only a remote possibility in favour of the accused person, which can be dismissed with the sentence “of course it is possible, but not in the least probable”, then it can be said in law that the case is proved beyond reasonable doubt. It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as doth:“What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’” 33.The court will start with the defence before proceeding to the prosecution’s case. The appellant gave an unsworn statement that there was a frame up. The evidence does not in one way or another tilt scales. The court will thus analyse the prosecution case. The State submitted that the complainant ought to be believed by dint of Section 124 of The Evidence Act. In the case of Geoffrey Kionji vs Republic Cr. Appeal No 270 of 2010, it was held as thus:Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80, Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.As such, it is evident that subjecting an accused to a medical examination to prove that he committed the offence is not a mandatory requirement of law and we find this ground to be unfounded. 34.The higher courts need to give more cogent directions on section 124 of the Evidence Act. Courts have used it as if it sets aside the burden of proof and the presumption of innocence. There has always been an understanding that all three conditions of the proviso to Section 124 have to be met for a conviction to occur. In the case of Tekerali s/o Korongozi & 4 Others –vs Rep (1952) 19 EACA 259 the importance of the first report was appreciated, where the court posited as follows:Their importance can scarcely be exaggerated for they often provide a good test by which the truth or accuracy of the later statements can be judged, thus providing a safeguard against later embellishment or the deliberately made up case. Truth will often [came] out in the first statement taken from a witness at a time when recollection is very fresh and there has been no opportunity for consultation with others. 35.The complainant in the first statement made on 19.10.2021, when the incident was very fresh, told the clinical officer that the appellant struggled with her but did not succeed to penetrate. This was before she had a chance to consult with others. However, a year later, on 14.10.2022, the memory apparently became clearer and she recalled that the appellant made three thrusts before suddenly stopping. The state charged with the offence of attempted defilement. It is after one year of change of mind that the charge sheet was amended. 36.The hapless clinical officer relied on history to find that there was attempted defilement. The private parts had no injuries, no lacerations, blood, tears, or dirt. All tests were normal. There is no proof of penetration. By changing the evidence midstream and adopting a different line, her entire evidence became worthless. Indeed, she even lied on the time of occurrence of the offence. To the doctor she indicated that she was out at 2300 hours and in court she stated it was 2100hrs. The difference is important and crucial. She testified that she was on the way to the shops at 2100hrs. 37.Further she told the investigating officer that she was suffering from the toothache. However, in her evidence in court she was having a headache. The discrepancies show that there is more of a possibility that the event did not occur. There is even the question of whom she talked to. The accused is allegedly called Warue. He responded by calling his name. However, she told the investigating officer that the appellant called her Mama Mbaya and she turned then the appellant tripped her. This means that she did not call him. This means that the evidence is totally unreliable. The inconsistencies go to the root of the case. 38.Once the complainant’s evidence became bogus, Section 124 of the Evidence Act goes out of the window. In Philip Nzaka Watu vs. Republic [2016] eKLR, the Court of Appeal held that:The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question. 39.Consequently, it was the primary duty of the trial court, which it failed, to carefully analyze the contradictory evidence and determine which version of evidence, on the basis of judicial reason, it could prefer. In Erick Onyango Ondeng’ vs. Republic [2014] eKLR, the Court of Appeal held that:The hearing before the trial court invariably entails consideration of often contradictory, inconsistent and hotly contested facts. The primary duty of the trial court is to carefully analyse that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, that time-honoured devise for testing the truth or correctness of evidence. Next is the first appellate court which by law, it is its bounden duty to re-consider, re-evaluate and analyse the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (See OKENO VS REPUBLIC (1972) EA 32). It is in the above context that this Court has said time and again that it will defer to and respect findings of fact by the trial court as affirmed by the first appellate court after due re-evaluation and analysis, because the second appellate court operates from the distinct advantage of not having seen or heard the witnesses. This Court will therefore not interfere with findings of fact by the two courts below unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole, the courts below were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law. 40.The trial court failed to hold that such a magnitude of contradictions, unless satisfactorily explained, will usually but not necessarily lead to the evidence of a witness being rejected. As was noted in Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6:With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case. 41.It is unsafe to conclusively hold that the incident occurred. It is not because the witness was a pathological liar but because of her incoherence on very many important details. Section 3(4) provides for a situation of this nature. It states as follows:A fact is not proved when it is neither proved nor disproved. 42.By taking two positions on every single fact in issue, the court finds that the rape was not proved. This is also coupled with the other most difficult position regarding identification. This was either 2100 or 2300 hours. The nature of the light is not described. In the case of R –vs- Turnbull & Others (1973) 3 ALL ER 549, a decision has been generally accepted and greatly used in our judicial system, the Court considered the factors that ought to be considered when the only evidence turns on identification by a single witness. The Court stated doth:The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way...? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made…. 43.The question of recognition was discussed in the case of Reuben Taabu Anjononi ,Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR), where the court of appeal [ Madan, Law & Potter JJ A)] posited as follows:The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one where no stolen property is found in possession of the accused. Being night time the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported). 44.The conditions for identification were not proper. The complainant did not describe the conditions in a way that it can remove doubt on identification. Consequently, I find that the conviction is unsafe. Therefore I set the same aside. Determination 45.I make the following final orders:a.The appeal on conviction and sentence is allowed. The conviction and sentence are set aside. The appellant is set free unless otherwise lawfully held.b.The appellant’s name be removed from the register of sexual offenders.c.Right of appeal 14 days.d.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 3RD DAY OF JUNE, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Appellant presentPC Anita Njogu at Mwea PrisonCourt Assistant – Martin