https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6945

Ndegwa v Republic (Criminal Appeal E040 of 2025) [2026] KEHC 6945 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 6945 (KLR) Republic of Kenya In the High Court at Nyeri Criminal Appeal E040 of 2025 MA Odero, J May 22, 2026 Between Wamai Ndegwa Appellant and Republic Respondent Judgment 1.The Appellant Wamai Ndegwa has filed this appeal challenging his conviction and sentence in the Magistrates Court in Karatina. 2.The Appellant had been arraigned in the Lower Court on 24th May 2023 facing a charge of Rape Contrary To Section 3(1) (a) (b) of the Sexual Offences Act 2006. The particulars of the charge were that“On the 19th day of May 2023 in Matura East, Sub-County of Nyeri County intentionally and unlawfully caused his penis to penetrate the vagina of AMN Without Her Consent.” 3.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 2006. 4.The appellant entered a plea of ‘Not Guilty’ to both charges and his trial commenced on 24th July 2023. The Prosecution called a total of three (3) witnesses in support of their case. 5.PW1 AMN told the court that she works as a casual labourer in [Particulars Withheld] village. She stated that on 18th May 2023, she had gone to Nyeri Town and returned to Karatina late at around 9.30pm. The complainant realised she did not have the Kshs. 100 required as transport fare to her village. She approached the appellant who was a fellow villager and who worked as a night watchman at [Particulars withheld] Hotel and asked him to assist her. The Appellants allowed the complainant to sit on the bench where he was working. 6.Later at about 11.00pm the appellant told the complainant that one of the rooms which had been occupied had been vacated. He told the complainant that she could spend the night in the vacated room. The complainant stated that the appellant led her to Room No. 1 which she entered. However the door of said room could not be locked from inside so the appellant locked her inside the room. 7.The complainant went on to testify that at about 2.00am she was fast asleep when she woke to find the appellant lying in the bed with her and he was already naked. The appellant proceeded to remove her skirt stocking and inner wear. He then raped her. 8.The next day the complainant went and reported the incident at Karatina Police Station and then went to Karatina General Hospital for treatment. The police later visited the scene. The appellant was then arrested and charged. 9.PW2 PC (W) Virginia Wavinya told the court that on 19th May 2023, the complainant came to the police station wearing only a lesso and reported that she had been raped. PW2 recorded her statement and escorted the complainant to Karatina General Hospital. PW2 then went to the scene at Silent Hotel and noted that the door of room No. 1 could not be locked from inside. The officer then arrested the appellant. 10.PW3 DR Stephen Nderitu is a medical practitioner who at the material time was working at the Karatina General Hospital. The witness confirms that the complainant was attended at that facility on 19th May 2023. He produces the complainants P3 form, (Pexb 1) as well as the PRC form (Pexb 2). 11.At the close of the prosecution case, the appellant was found to have a case to answer and was placed on his defence. The appellant gave a sworn defence in which he denied having raped the complainant. The appellant called two (2) witnesses in support of his defence. 12.On 30th June 2025 G. Kirugumi, Principal Magistrate delivered the judgment in which she convicted the appellant on the main charge of rape. Following his conviction, the appellant was granted an opportunity to mitigate. Thereafter the trial court sentenced the appellant to serve ten (10) years imprisonment. 13.Being aggrieved by his conviction and sentence the appellant filed this appeal which is premised upon the following grounds:-“ 1.That, the learned trial magistrate erred in law and fact when she awarded a conviction and sentence of 10 years imprisonment on evidence of PW1 the star witnesses the clinical officer which did not amount to proof beyond reasonable doubt. The charge of Rape contrary section 3(1)(a) (b) and (c) of the Sexual offences act remains not proved without positive prove of Lack of consent and identification of the assailant. 3.That, the learned trial magistrate erred in law and fact when she awarded a conviction and sentence of 10 years imprisonment on evidence of the prosecution witnesses that was marred with inconsistences and the evidence was uncorroborated. 4.That, the learned trial magistrate erred in law and fact when she awarded a conviction and sentence of 10 years imprisonment on evidence of the prosecution witnesses but did not consider the appellant’s plausible defense of alibi given with notice and under Oath where the appellant gave plausible evidence and was supported by witnesses which was not rebutted by the Prosecution.” Analysis And Determination 14.I have carefully considered the appeal before this court, the record of the trial before the Lower Court as well as the written submissions filed by both parties. 15.This is a first appeal in which the duty of the Court is to re-examine and re-analyse the evidence adduced before the lower court and to draw its own conclusions on the same. In the case of Okeno -vs- Republic [1972] EA 32 the court set out the duties of the appellate court as follows:-“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 Republic (1957) EA 336 and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to support the lower court’s finding 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 thewitnesses, see Peters v Sunday Post [1958] EA 424.”(See also Kiilu & Another v Republic [2005] KLR 174). 16.Similarly in the case of David Njuguna Wairimu -vs- republic [2010] eKLR the Court of Appeal stated as follows:-“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.” 17.Section 3(1) of the Sexual Offences Act defines the offence of rape in the following terms:-“(1)A person commits the offence of 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 means of threats or intimidation of any kind.” 18.Section 2(1) of the same Act defines penetration as follows:-“penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 19.The first aspect of the offence of rape which requires proof is the fact of penetration. The complainant told the court that the appellant accosted her while she was fast asleep and he proceeded to rape her. Following the incident the appellant reported the rape at Karatina Police Station. It is highly unlikely that the complainant would take herself to the police station to report that she had been raped if no such incident had actually occurred. 20.The complainant told the court that she had approached the appellant seeking assistance as she did not have sufficient transport fare to enable her travel home to her village late at night. The appellant who was a night watchman at a hotel in Karatina offered her a room which had been vacated by a patron to pass the night. 21.The complainant states that at 2.00am while she was asleep she felt a person lying in the bed with her. That person was naked. The complainant narrates that she struggled with the appellant but he overpowered her and raped her. 22.Corroboration of the fact that sexual activity (penetration) had taken place is provided by the evidence of the doctor PW2. The P3 form dated 19th May 2023 indicated that upon examination the complainant had a whitish discharge from the vagina and mucoid discharge. There were old tears in the hymen which was not surprising since the complainant is an adult woman. The findings in the P3 form are confirmed by the PRC form Pexb 2. 23.PW3 told the court that although the complainant had no physical injuries she had pain and tenderness on the thighs which in his opinion indicated the use of force. 24.The Appellant challenges the evidence on penetration stating that the lack of injuries on the complainant private parts belies the allegation of rape. However the court need not rely on medical evidence alone as proof of penetration. Lack of direct medical evidence is not fatal to a charge of rape. The testimony of the victim as well as circumstantial evidence may suffice. 25.In the case of Kassim Ali -vs- Republic [2005] eKLR the court stated that“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence.” 26.In this case I find that the evidence of mucoid discharge supports the allegation of rape. Based on the foregoing I find that the prosecution did prove the fact of penetration. 27.An essential ingredient of a charge of rape is the lack of consent by the victim. The complainant stated that she did not consent to the Sexual activity. She states that she called out to the soldier (watchman) to help her but the accused held her chest telling her not to humiliate him. 28.After the incident the appellant threw the complainant’s clothes out of the window. These clothes were later recovered outside the hotel in the Veranda. PW2 confirms that the complainant came to the police station with no clothes - she only had a lesso to cover herself. 29.Lastly the fact that the incident occurred when the complainant had fallen asleep is indicative of lack of consent. If the complainant was a willing participant in the sexual activity then there would have been no need for the appellant to sneak back into the room after she had fallen asleep. 30.The final elements of a charge of rape which requires proof is the identity of the perpetrator. The court is mindful of the fact that the complainant was only witness who identified the appellant. The court is mindful of the dangers of relying on the evidence of a single identifying witness. 31.Section 124 of the Evidence Act Cap 80 Laws of Kenya provides as follows:-“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him.Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” [Own emphasis] 32.The above position was affirmed in the case of J.W.A VS Republic (2014) eKLR, where the Court of Appeal held that:“We note that the appellant was charged with a sexual offence and the proviso to section 124 of the Evidence Act clearly states that corroboration is not mandatory. The trial court having conducted a voire dire examination of PW1 and being satisfied that the complainant was a truthful witness, we see no error in law on the part of the High Court in concurring with the findings of the trial magistrate.” 33.Therefore Section 124 empowers a court in Sexual offences to convict an accused on the basis of the evidence of the complainant alone. Undoubtedly this is because Sexual Offences are normally committed in secret and there is very rarely an eye witness to a rape or defilement. 34.The complainant has identified the appellant as the person who raped her. The appellant was a person well known to the complainant as he was a fellow villager. Indeed when the complainant found herself stranded in Karatina town late at night, she chose to approach the appellant whom she knew for assistance. 35.There is therefore clear evidence of recognition. In the case of Anjononi and 4 Others -vs- Republic [1980] KLR the Court held that:-“…………….recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge or the assailant in one form or another.” 36.It is not disputed that the incident occurred at night obviously it was dark. How then was the complainant able to see and identify the appellant. In her evidence the complainant stated that after the incident she switched on lights and she saw the appellant. 37.It must be remembered that the complainant had spent time with the appellant firstly seated on a bench next to the appellant. Further it was the appellant who took the complainant to the room and locked her inside. Clearly then the appellant who went away with the keys had access to return and enter the room as he wished. 38.The complainant spent ample time with the appellant. This coupled with the evidence on recognition persuades me that there was clear and reliable identification of the Appellant as the man who raped the complainant. 39.In his defence the appellant denied that he raped the complainant. The Appellant concedes that he works at a hotel in Karatina as a night watchman and that he was on duty on the night in question. The Appellant confirms that the complainant was someone he knew and that she was a fellow villager. However he denies that he allowed the complainant to occupy a vacant room at the hotel where he worked. The Appellant stated that Room No. 1 was occupied all night by a customer and he produced the receipt book as proof that the room was paid for. A look at the receipt book Dexb 1 reveals that Kshs. 700 was paid for Room No. 1 on 18th May 2023. However that receipt (and indeed none of the receipts) indicates when the room in question was vacated. It is common knowledge that in some cases rooms in hotels are taken by patrons only for a few hours. The receipt book does not disprove the complainants claim that the tenant vacated the room during the night. 40.DW2 who work with the appellant at the hotel states that on the material day she sold rooms in the hotel during the daytime. When the appellant came on duty in the evening DW2 handed over the keys to him and left for her home at 8.00pm. DW2 has no idea what happened after she left. 41.DW3 Patrick Muriithi states that he is a night watchman at Absa Bank which neighbours the hotel where the appellant works. He stated that on the material night the appellant went to town and left him to watch the lodging and he later returned at 11.00pm. However DW2 told the court that he has no idea how many rooms were occupied that night and he has no idea whether a customer vacated his/her room during the night. 42.DW3 told the court that he never saw the complainant during that night. It must be remembered that DW3 was not employed to guard the hotel in question. He was employed to guard the neighbouring Bank. As such DW3 would not have been expected to note who came or left the hotel premises. All in all the evidence of DW2 and DW3 did not cast any doubt on the prosecution case. In fact their testimonies were of no assistance to the defence case. 43.The Appellant in his defence went on to claim that he had been asked for a bribes by police officers and suggests that he was only charged on account of failure to pay the bribes asked for. This issue of a bribe was never raised by the appellant during cross-examination of the prosecution witnesses. It is clearly an afterthought. 44.Finally in his defence the Appellant claimed that the complainant had framed him. He alleged that the complainant was a prostitute and that she had a grudge against him because he did not allow her to use the rooms in Silent Hotel when she had ‘clients’. Firstly no evidence was adduced to show that the complainant was a ‘twilight girl’. Secondly there was no evidence to prove that she ever sought to be accommodated in Silent Hotel. This is an unproven allegation. 45.All in all I find that the defence of the appellant was not credible and did not in any way negate the prosecution case. 46.Finally I am satisfied that the prosecution proved their case beyond reasonable doubt. The conviction of the appellant was merited and I do confirm that conviction. 47.Following his conviction the appellant was allowed an opportunity to mitigate. A pre-sentence report dated 9th July 2025 was filed in Court.The trial magistrate then sentenced the appellant to serve ten (10) years imprisonment. 48.Section 3(3) of the Sexual Offences Act provides that“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.” 49.The Act therefore provides for a minimum sentence of ten (10) years.In the case of Republic -vs- Joshua Gichuki Mwangi [2023] eKLR the Supreme Court of Kenya upheld the constitutionality of mandatory minimum sentence as provided for in the Sexual Offences Act. The sentence imposed upon the appellant was therefore lawful. 50.Finally I find no merit in this appeal. The same is dismissed in its entirety. The conviction of the Appellant is confirmed and the sentence is upheld. DATED IN NYERI THIS 22ND DAY OF MAY 2026.............................MAUREEN A. ODEROJUDGE