https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7635

Wanjala v Republic (Criminal Appeal E021 of 2025) [2026] KEHC 7635 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7635 (KLR) Republic of Kenya In the High Court at Bungoma Criminal Appeal E021 of 2025 REA Ougo, J May 28, 2026 Between Fredrick Wanjala Appellant and Republic Respondent (An appeal from the judgment and decree of the Chief Magistrate’s Court at Webuye (E.M. Munyekenye, SPM) delivered on 20th July 2023 MCSO No. E004 of 2022) Judgment 1.The appellant, Fredrick Wanjala, was charged with the offence of rape of a person of mental disability contrary to section 7 of the Sexual Offences Act. The particulars of the offence were that on 19th April 2021, at Webuye west sub-county within Bungoma County, the appellant intentionally and unlawfully caused his penis to penetrate into the vagina of D.W., without her consent, being a person with mental disability. 2.The appellant faced an alternative count of committing an indecent act contrary to section 11 (1) of Sexual Offences Act. The particulars set out were that on 19th April 2021, at Webuye west sub-county within Bungoma County, the appellant intentionally and unlawfully rubbed his penis against D.W.’s vagina. 3.The appellant pleaded ‘not guilty’ to both counts. After a full trial, the appellant was convicted of the main charge and sentenced to 10 years’ imprisonment. It is those findings that have occasioned the present appeal. 4.The appellant filed an undated petition of appeal and an amended petition of appeal. The appellant raised several grounds of appeal, which can be summarised as follows: the medical evidence could not sustain the conviction, as it was not proved beyond reasonable doubt; the investigations were shoddy; the prosecution's evidence was riddled with contradictions, inconsistencies and discrepancies; his defence was not considered; in sentencing the appellant, the trial court failed to take into account the period he had spent in custody; and the sentence imposed was harsh and excessive. For those reasons, the appellant prayed that his appeal be allowed, the conviction be quashed, the sentence be set aside, and that he be set at liberty. 5.The appeal was canvassed by way of written submissions. In his undated written submissions, the appellant submitted that PW5 violated section 77 (2) of the Evidence Act and section 7 (4) of the Clinical Officer’s Act by failing to disclose his qualifications and credentials before adducing evidence. He was therefore an incompetent witness and his evidence was unreliable. He cast doubt on the medical evidence, as no spermatozoa were detected in the complainant’s private parts. Furthermore, he suggested that the fact of the hymen being torn could have been contributed to by several factors, not associated with him. Further, the P3 form was filled in after a considerable time had lapsed since the offence had been committed. 6.The appellant further submitted that he was framed on the strength of the evidence of PW1, PW2 and PW3. This was because he was arrested long after the offence had been committed. He observed that the evidence of PW1 was in contradiction to that of PW3. In his view, the complainant was not mentally challenged. He lamented that the trial court failed to consider his cogent defence. Regarding his sentence, the appellant submitted that it was not only harsh and excessive but also that the court failed to consider his old age and to take into account section 333 (2) of the Criminal Procedure Code. For those reasons, the appellant prayed that his appeal be allowed. 7.The respondent opposed the appeal and filed its written submissions on 11th November 2025. It was submitted that the ingredients of the main charge of rape, namely lack of consent, penetration, and the appellant’s identity as the perpetrator, were proved to the required standard. The respondent sought to have the appeal dismissed. Analysis And Determination 8.I have considered the parties’ submissions, examined the record of appeal and the law. The first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyse it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and to give allowance for that. 9.The facts as set out by the prosecution are as follows in the record before me: PW1 Sostine Wanyonyi Wanjala, the complainant’s brother, testified as an intermediary to the complainant after the court was satisfied that the complainant was mentally challenged. His evidence was that on 19th April 2021, he was with his close friend, the appellant, who prepared lunch that they ate at home with the complainant and his other sibling, PW2 Gladys Wanyonyi. After eating, PW1 retired to sleep. 10.PW1 was awakened by a customer. It was raining. He observed that the appellant was not there. He was then informed that the appellant had gone to fetch tools. He also found that the complainant was missing, even though she had previously been left in the kitchen. He began searching for her, as she was mentally challenged. He was accompanied by his brother, PW3 Ben Changalwa. On interrogating PW2, who was in the field, PW1 was informed that Kuka Fredrick had been seen pulling the complainant’s hand towards the toilet. 11.At this juncture, PW1 saw the appellant leaving the toilet, where he said he had found the complainant. He noted that this was obscure, as the complainant, due to her mental incapacity, never answered a call of nature in the toilet. He also noticed that her clothes were soiled and dirty. On interrogating the appellant, he noted that the appellant's knees were dirty. The appellant was also visibly angry. This prompted him to flee the scene on his bicycle. 12.PW1 thereafter took the complainant to Bokoli Hospital, where a P3 form was issued. He later reported the incident at Bokoli Police Station. The complainant was seen on 20th April 2021. He was unable to pay for the P3 form, and as a result, it was completed only after a considerable delay. Upon seeking advice from a human rights activist, PW1 learned that P3 forms were not chargeable. He was thus given one dated 18th October 2021. 13.11-year-old PW2 testified that after lunch, which had been cooked by the appellant, she was in the field looking after cows. When it started raining, PW2 sought shelter at the chief’s veranda. There she saw the appellant, their uncle, holding the complainant’s hand and escorting her to the toilet. She wanted to report but was impeded by the rain. When it stopped raining, PW2 told PW3 and PW1 what she had seen. She recalled that the complainant usually answered nature’s call from behind rather than inside the toilet. 14.PW3 testified that on the fateful day he had come to visit PW1, whom he found asleep. He then discovered that the complainant, his sister, was missing, and began searching for her. PW1 joined him after waking up. PW1 then called PW3 to the toilet, where they found the complainant seated. When PW3 interrogated the appellant, who was nearby, the appellant ran away. At that point, PW2 informed them of what she had seen. PW3 observed that the complainant’s clothes were dirty. They then reported the incident to the police station and took the complainant to hospital. He corroborated PW1’s evidence that, initially, they had been told that the P3 form was chargeable. Upon the advice of a human rights activist, they were able to obtain the P3 form free of charge. 15.PW4, clinician Simeon Kiveu, working at Bokoli Sub-County Hospital, testified that he filled in the P3 form and that the complainant was seen at the facility on 20th April 2021. On examination of her private parts, PW4 observed that her hymen was broken, that she had whitish vaginal discharge, and that she had a urinary infection. He produced the P3 form, completed six months later, in which he examined the complainant again. He was aware that the complainant’s relatives had been deceived into believing the P3 form was chargeable, hence the delay. He produced her treatment notes and the P3 form in evidence, where he concluded that the complainant had been raped. 16.PW5 PC Peter Mugo, the investigating officer, interrogated witnesses, recorded their statements, collected evidence, and preferred the charges against the appellant. 17.At the close of the prosecution’s case, the trial court formed the opinion that the prosecution had established a prima facie case against the appellant. He was placed on his defence. His sworn statement was that at the material time he was working as a carpenter. He had set up his workshop in PW1’s house. On 18th April 2021, he went to cut trees. He was then asked by PW1 to accompany him to another location. He found PW3. He was then threatened by two persons that he would be framed because of money arising from the trees. He was then arrested by members of the public. 18.From the evidence on record, I find that PW1, PW2 and PW3 gave evidence that was unshaken, and even in cross-examination, their evidence was not cast in doubt. They all knew the appellant very well. The incident occurred during the day, when there was no possibility of mistaken identity. This was a case of recognition rather than identification. 19.Evidence was adduced that on the fateful day, PW1, PW2 and the complainant all had lunch. Afterward, PW1 went to sleep while PW2 proceeded to herd cattle. While in the field, PW2 saw the appellant taking the complainant to the toilet. PW1 and PW3 found the complainant in the toilet. This was peculiar to them, as the complainant never used the toilet owing to her mental incapacity. 20.PW1 and PW3 observed that the complainant’s clothes were soiled and dirty. According to PW1, the appellant’s knees were dirty. When PW1 and PW3 interrogated him, the appellant fled. The complainant was taken to Bokoli Hospital. According to PW4, the complainant’s hymen was torn, consistent with the element of penetration. I find that the medical evidence sufficiently established that the complainant had been sexually assaulted. It was also explained why the P3 form took too long to be completed, thereby delaying the appellant’s subsequent arrest. I have no reason to doubt that explanation. 21.It is also clear from the record that, in the trial court’s assessment, the complainant had a mental disability. This finding prompted the trial court to appoint PW1 as her intermediary witness. She therefore could not consent to any sexual activity. From the evidence, it is also clear that all the witnesses’ evidence corroborated each other and followed a consistent chain of events, supporting the conclusion that a conviction was sustainable. 22.In his defence, the appellant raised several issues. However, those issues were not put to the prosecution witnesses during cross-examination. His defence was evidently an afterthought. The appellant also lamented that PW4 failed to disclose his credentials and qualifications, an affront to section 77 (2) of the Evidence Act and section 7 (4) of the Clinical Officer’s Act. That issue was raised only in his submissions and not in his petition of appeal. Be that as it may, it was never raised at trial. It is thus disregarded. 23.In light of my foregoing analysis, I find that there are no reasonable grounds in the petition of appeal, as amended, and that the appeal is without merit. All ingredients of the charge of rape of a person of mental disability were proved to the required standard. Accordingly, the appeal against the appellant’s conviction lacks merit and is hereby dismissed. 24.On sentence, section 7 provides that a convicted person is liable to imprisonment for a term which shall not be less than ten years. The trial court considered the appellant’s mitigation. He prayed for leniency, as his children depended on him. The court further considered that the appellant was a first offender. He was sentenced to 10 years’ imprisonment. I have no reason to disturb that sentence, which is lawful. However, having noted that the appellant was in custody when the trial commenced, continued, and was concluded, I direct that the period of the sentence be computed in line with section 333(2) of the Criminal Procedure Code from the date the appellant was arraigned in court. DATED, SIGNED AND DELIVERED VIRTUALLY ON THE 28TH DAY OF MAY 2026.R. E.OUGOJUDGEIn the presence of:Fredrick Wanajala/AppellantRespondent - AbsentWilkister C/A