https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11152

Wanjiru v Republic (Criminal Appeal E018 of 2024) [2026] KEHC 11152 (KLR) (21 July 2026) (Judgment) Neutral citation: [2026] KEHC 11152 (KLR) Republic of Kenya In the High Court at Nanyuki Criminal Appeal E018 of 2024 AK Ndung'u, J July 21, 2026 Between George Wanjau Wanjiru Appellant and Republic Respondent Judgment 1.The Appellant was charged with rape contrary to Section 3(1) (a) (b) as read with Section 3 of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 30th day of October 2022 at [Particulars Withheld], Gakawa location, in Kieni East Sub County within Nyeri county, intentionally and unlawfully caused his penis to penetrate the anus of DWG without her consent. 2.In alternative the Appellant was charged 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 offence were that on the 30th day of October 2022 at [Particulars Withheld], Gakawa location, in Kieni East Sub County within Nyeri county, intentionally touched the buttocks and anus of DWG with his penis against her will. 3.He was tried, convicted and sentenced to 15 years imprisonment. 4.Aggrieved by the conviction and sentence, he lodged this appeal based on the following grounds;a.That, the learned trial magistrate erred in Law and facts by convicting the Appellant on a case that was not proved beyond reasonable doubt.b.That the learned trial magistrate erred in Law and facts by convicting the Appellant on a single witness evidence of PW1 without warning himself of the dangers of such admissibility.c.That the learned trial magistrate erred in Law and facts by convicting the Appellant without appreciating that the rape report was reported after 30 days which was a clear afterthought.d.That the learned trial magistrate erred in Law and facts by convicting the Appellant without weighing his defence against prosecution case.e.That the learned trial magistrate erred in Law and facts by applying wrong principle during sentencing by meting out a harsh and excessive sentence of 15 years without considering mitigation factors of the Appellant.f.Reason whereof; That I pray this appeal to succeed, sentence quashed and I be set at liberty. (sic) 5.The Appeal was canvassed by way of written submissions. 6.The Appellant submitted that the prosecution failed to prove the offence beyond reasonable doubt. He challenged the absence of documentary evidence establishing PW2's hearing and speech impairment and similarly questioned the qualifications of the sign-language interpreter. 7.On penetration, the Appellant submitted that the medical findings did not establish anal penetration. He relied upon the absence of physical injuries, spermatozoa and abnormal anal findings and argued that the findings concerning an old broken hymen and epithelial cells could not prove the offence charged. 8.The Appellant further contended that the delay in reporting the alleged offence demonstrated that the complaint was an afterthought. He also challenged the failure to call PW2's mother as a witness and the failure to subject him to medical examination. 9.The Respondent opposed the appeal and submitted that all the ingredientsof rape under section 3 of the Sexual Offences Act had been established beyond reasonable doubt. 10.On penetration, the Respondent relied on PW2's testimony, the medical evidence and section 124 of the Evidence Act. Reliance was placed, inter alia, on Bassista v Uganda, Njoki v Republic, Mbithi v Republic and MMW v Republic. 11.On lack of consent, the Respondent relied on JKA v Republic [2014] eKLR. On identification, reliance was placed on Anjononi & Others v Republic. The Respondent further submitted that the delayed report was reasonably explained and did not undermine PW2's credibility. 12.Regarding the defence, the Respondent submitted that the allegation of fabrication was unsupported and that the Appellant's defence did not create reasonable doubt. On sentence, it was submitted that the fifteen-year term was lawful and appropriate in the circumstances. 13.Being a first-time appeal, the Court's duty is to consider the evidence presented to the trial Court with caution that it neither heard nor saw the witnesses. In Okeno VS-Republic (1972) EA 32, it was held that;“An Appellant is entitled to expect the evidence as a whole to be submitted to afresh 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. It is not the function of the 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 conclusions. Only then can it decide whether the magistrate's findings can be supported. In doing so, it should make an allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses." 14.In his submissions i note the Appellant purports to introduce new grounds of appeal through the submissions. At the outset, Section 350 (2) of the Criminal Procedure Code estops an Appellant from relying on grounds that were not in the Petition of Appeal unless leave of the Court is sought. No leave to amend the Petition of Appeal had been hitherto sought. To seek it through submissions and to proceed to submit on extraneous grounds is to be presumptuous. 15.A recap of the evidence at the trial Court was as follows. PW1 was JK, who told the Court that he is the father of the complainant, DK, who has a hearing disability. He recalled that on 25th November 2022, while he was at home watching the news, his daughter-in-law, JM, came and asked to speak with him and his wife. J informed them that D had texted her expressing fear that she might be pregnant as a result of sexual intercourse. 16.Upon asking J to explain further, she narrated that D disclosed an incident that occurred on 30th October 2022, a Sunday, when the family members were away from home. D told J that their worker/employee, the Appellant, had raped her outside the house. PW1 was unable to believe the report since the Appellant was a diligent worker. 17.PW1 recounted that D explained how, on the material day, while she was alone at home, the Appellant came to the window and beckoned her to go outside. When she stepped out, the Appellant allegedly raped her through the anus. PW1 then decided to report the matter to the police and sought assistance from a sign-language interpreter due to D's hearing disability. 18.PWI added that they were referred to Narumoru Police Station, where an interpreter named Joyce Wothaya assisted in recording the complaint and filling the P3 Form for D. He further testified that on 1st December 2023, the Appellant was arrested, and PW1 identified him to the police at his home, stating that the accused had been his shamba boy. PW1 identified D's P3 Form, and her PRC Form. In cross-examination, PW1 stated that J did not live with them, hence she communicated with D through phone calls or text messages. 19.PW2, DW, the complainant, told the Court through a sign language interpreter, Joyce Wothaya that she hails from Wahuka Gakaya and recalled that on 30/10/2022, the Appellant person forced her. She explained that she was familiar with him, knowing him as the shamba boy at their home. 20.She stated that before the main incident, the Appellant had touched her breasts without her consent. On that day, she had returned home from the shop and was alone in the house. While she was in the living room, the accused beckoned her. She went and asked what he needed from her. When she stepped outside the door, the accused dropped his trousers and pants and showed her his penis. 21.PW2 testified that the accused forced himself on her despite her resistance, which she expressed through signs and physical struggle. The accused struggled to remove her trousers and eventually succeeded. He then forced her to bend over with her trousers removed. PW2 stated that the accused inserted his penis into her anus. She added that he attempted to insert his penis into her vagina but only managed to penetrate her anus. 22.After the accused finished, PW2 went to take a bath. She stated that the accused threatened her not to reveal what had happened by making a gesture of biting his finger placed on his lips. PW2 later disclosed the incident to her sister-in-law, J, who summoned her parents. She then narrated the ordeal to her parents, and they jointly reported the matter to Naromoru Police Station. 23.PW2 was later examined at Nanyuki Teaching and Referral Hospital (NT&RH). She stated that this is where her P3 Form and PRC Form were completed. She confirmed seeing those documents at NT&RH. She further emphasized that she knew the Appellant well, identifying him in Court as George Wanjau. 24.In cross examination, PW2 confirmed that the incident took place on 30/10/22. She explained away the delay in reporting on the basis that she feared the Appellant. She explained that although the Appellant was at the shop when she left, he later arrived home at 7:30 pm. She added that the Appellant also delivered milk to her shop and that she owned the shop. She reiterated that the rape occurred outside the house and on a Sunday. 25.PW2 confirmed that she was treated on 26/11/2022, and the doctor told her that her hymen had been ruptured. She clarified that she runs her business alone and is not engaged in heavy work, and therefore could not identify any other possible cause for the injury. She also stated that she changed and washed her clothes on the material day. 26.PW3, J Nduku Mutisya, testified that that she hails from Kimahuri Kafaru and works as a counsellor. She recalled that on 25/11/2022, she had visited her family in Nanyuki. Her sister, PW2, had been requesting to speak with her, and at about 9:30 p.m., after dinner, PW3 went to PW2's room for a talk. She asked PW2 how she was doing, and PW2 expressed fear that she might be pregnant as a result of anal sex. PW3 testified that on 30/10/2022, the family had visited home but left PW2 alone with the accused. 27.PW3 gave an account of the incident as narrated to her by PW2. That the Appellant had appeared at PW2’s door on that day, knocked, and beckoned her to go outside. PW2 said she went outside, where the Appellant showed her his penis. PW2 declined his advances, but the accused forcefully touched and grabbed her, bent her over, and had anal sex with her. PW3 counselled her to report the incident, and the following day they shared the information with PW2's parents. PW2 later attended NT&R Hospital and the matter was reported to the police. PW3 confirmed she had known the accused for years and identified him as the person in the dock. 28.During cross-examination, PW3 stated that PW2 had initially asked for a talk through phone text. She added that she is familiar with aspects of sign language, and on 25/11/2022 she finally got an opportunity to speak with PW2. PW3 confirmed that PW2 had not disclosed the details earlier via phone. 29.In re-examination, PW3 clarified that PW2 was left alone at home on 30/10/2022, and the rape occurred on that same date. 30.PW4 was No. 109385 PC Bridgette Ndubi attached to Naromoru Police Station and she was the investigating officer in the matter. She told the Court that on 26/11/2022, the complainant was brought to the station by her father with a report of rape. The complainant, being deaf and mute, was accompanied by a translator. PW4 documented the complainant's report and referred her to NTR Hospital, where the complainant received treatment. The P3 Form was subsequently issued and filled. PW4 visited the scene, which was the complainant's home. The complainant identified both the scene and the Appellant who was found within the compound. PW4 apprehended him. 31.Cross-examined by Mr. Sirma, PW4 stated that the complainant had identified the Appellant to her as the assailant. She added that the complainant was familiar with the Appellant as their worker or employee at the homestead, and therefore an identification parade was unnecessary. She confirmed that the alleged offence took place on 30/10/2022. She also stated that she did not receive any clothes. 32.PW5, Salat Guyo, testified that he is a clinician at Nanyuki Referral and Teaching Hospital and holds a Diploma in Clinical Medicine from KMTC, Machakos. He indicated that he had 13 years' experience at the time of examining the complainant. He produced a P3 Form filled in respect of the complainant, DW Githinji, aged 24. According to the history given, the complainant alleged that she had been raped by a shamba boy on 30/10/2022 at around 7:00 pm. PW5 noted that the complainant was deaf. 33.On genital examination, PW5 observed no fresh injuries. He found that the complainant’s hymen was old broken. There was no foul-smelling vaginal discharge. A pregnancy test was negative, VDRL was negative, and PIPC was negative. Her stool showed no infection and urinalysis was normal. A high vaginal swab revealed a few epithelial cells. An anal swab revealed no spermatozoa. PW5 concluded, based on the history and laboratory results, that there was evidence of penetration. He signed the P3 Form and produced it as Prosecution Exhibit 1. He added that the information was transferred to the PRC Form, which he wished to rely on as Prosecution Exhibit. 34.On cross-examination, PW5 explained that epithelial cells appear after penetration of the genitalia and their presence supported the conclusion of penetration. He reiterated that the hymen was not freshly broken and noted that the laboratory results suggested it was possible for the hymen to have been ruptured on 30/10/2022. PW5 stated that he examined the complainant a month after the alleged incident, which explained the absence of physical injury. He also confirmed that the complainant had not attended any hospital prior to his examination. 35.PW5 acknowledged that a hymen can rupture from causes other than sexual activity. He testified that the anal examination was normal. He added that the accused was never brought to the hospital for examination. 36.Upon re-examination, PW5 stated that the infection noted was consistent with sexual penetration and clarified that taking a bath could not have caused the infection. He maintained his conclusion that there was evidence of penetration. 37.When placed on his defence, the Appellant elected to give a sworn statement. He confirmed his employment by PW1 for two years as a shamba boy. His employment was terminated on 1/12/2022, which was also the day he was arrested. He said that the police found him in his house, handcuffed him, and escorted him to Naromoru Police Station, after which he was arraigned the following day. 38.He testified that he used to work eight hours a day and specifically recalled that on 30/10/2022 at around 7:30 p.m., he was at the shop belonging to his employer, selling milk. He stated that he worked at this shop daily from 6:00 p.m. to 9:00 p.m., while spending the rest of the day working at the farm. He added that he stayed at the shop until 9:00 p.m. and then went to his own rental house. He stated he was familiar with the complainant, D (PW2), who was his employer's daughter. 39.The Appellant denied finding the complainant alone on the material day, denied caressing her or warning her not to tell her father, and firmly denied raping her. He noted that no identification parade had been conducted, and that no medical examination had been done on him. He stated that the case against him was fabricated. 40.In cross-examination, the Appellant confirmed that he was indeed an employee of PW1 and was familiar with his family members. He reiterated that he used to sell milk at the shop from 6:00 p.m. to 9:00 p.m., and that PW1's children often visited the shop during the day. He maintained that he had access to PW1's homestead by virtue of being a shamba boy. He further stated that neither PW1 nor PW2 had ever taken any legal action against him, and he had no differences with them. 41.On re-examination, he added that the children only visited the shop during the daytime, and during such hours he would be working in the garden. He maintained that the offence was fabricated and denied all allegations. 42.I have had occasion to consider the evidence on record. In so doing, I have taken cognizance that, unlike the trial Court, I did not have the advantage of seeing and hearing the witnesses testify and have given due allowance for that fact. I have had due regard to the submissions made, case law cited and the applicable statutory provisions. 43.The twin issues for determination are whether the prosecution proved its case beyond reasonable doubt, and, if in the affirmative, whether the sentence meted out by the trial Court was legal and appropriate in the circumstances of this case. 44.Section 3 of the Sexual Offences Act No.3 of 2006 defines 'rape' as follows:“-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; or(c)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" 45.From the above definition, the ingredients of the offence of rape, therefore, include proof that the victim was not a minor, proof of penetration, proof of the perpetrator and proof that the consent was not freely given. 46.The first element is age. Regarding proof of age of the complainant, this was not contested in this appeal. The complainant testified that she was aged 24 years old. That was confirmed by the P3 Form which was produced as an exhibit. 47.The complainant was, hence, not a minor in law. 48.As regards penetration, Section 2 of the Sexual offences Act No. 3 of 200 defines "penetration" as the partial or complete insertion of the genital organs of a person into the genital organs of another person. 49.The evidence available in support of penetration is the evidence oral testimony that that the Appellant forced her to bed over and he inserted his penis in her anus. This evidence is a stand -alone piece of evidence that lacks corroboration. However, in sexual offences, Section 124 of the evidence Act comes into play. 50.The Section 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." 51.In the case of Bassita vs. Uganda S.C. Criminal Appeal No. 35 of 1995, the Supreme Court of Uganda had the following to say in respect of proving penetration:-“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victim's own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not hard and fast rule that the victim's evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that sufficient to prove the case beyond reasonable doubt." 52.In Njoki v Republic (2024) eKLR, the High Court reaffirmed that penetration of the anus constitutes penetration for purposes of rape, emphasizing that proof of even partial anal penetration is sufficient to sustain a conviction. The complainant's testimony in this case clearly narrated the manner in which the Appellant inserted his penis into her anus. This testimony, on its own, is capable of sustaining a conviction under Section 124 of the Evidence Act where the Court believes the victim and records the reasons. 53.In addition, Courts have set jurisprudence that establishes that medical evidence, while desirable, is not mandatory so long as the victim's account is credible and coherent. 54.Was it safe to convict on the evidence of the complainant alone? There was a delay in the reporting with the incident being reported a month later. This delay was explained as arising from the complainant’s fear of the Appellant. It is also not lost on the Court that the complainant is a person with disability unable to hear or communicate. In those circumstances, it is conceivable that she would delay in the reporting for lack of knowledge of her rights or existing protections offered to her by the law. Indeed, this is discernable from the fact that even when she reported, she sought a confidant in her sister in law and only for purposes of informing her she was fearing she could be pregnant form the incident and not for legal action purposes. 55.The delay of 30 days in reporting does not, in the circumstances of this case, undermine the credibility of the complainant. Our Courts have repeatedly recognized that delays in reporting sexual offences are common and are often influenced by trauma, fear, shame, or the victim’s vulnerability. In Republic v Oyier [1985] eKLR, the Court of Appeal held that;“delay alone is not fatal and does not weaken the prosecution case unless it is shown to have caused prejudice to the accused or to reflect fabrication.” 56.Similarly, in JWA v Republic [2019] eKLR, the Court emphasized that victims of sexual offences may require time to process the trauma before making a formal report, especially where the victim is mentally, physically, or communicatively disadvantaged. In this case, the complainant was deaf and mute, heavily relying on gestures, drawing, and third-party interpretation to communicate. Her disability reasonably explains any hesitation or difficulty in immediately reporting the incident. 57.The Appellant has not demonstrated any prejudice suffered because of the delay, nor has he shown that the delay was motivated by malice or fabrication. The complainant's disability, the nature of the trauma, and the consistency of the evidence all point to the delay being reasonable and non-prejudicial. It therefore does not undermine her credibility. 58.There is no evidence that the complainant harboured any grudge against the Appellant and indeed the defence does not raise any. Am satisfied the complainant told the truth and the lack of corroboration to her evidence is cured by the application of Section 124 of the Evidence Act. 59.The Appellant's defence was a mere denial and fails to dislodge the complainant’s detailed account of how the Appellant over powered her and penetrated her anus. No motive for fabrication was demonstrated. As held in Musyoka v Republic (2024) eKLR, a bare denial does not create reasonable doubt where the prosecution's evidence is strong. 60.Am satisfied that penetration was proved. 61.On the question of consent, the complainant was a vulnerable adult-deaf and unable to speak-and the evidence shows she was overpowered and violated within her homestead. 62.It is trite that lack of consent may be inferred from the circumstances, especially where the victim is vulnerable or unable to communicate freely. In JKA v Republic [2014] eKLR, the Court of Appeal held that:“Resistance, alarm, or distress are not the only indicators of lack of consent; the Court may infer non-consent from the surrounding facts, the complainant's condition, and the conduct of the assailant". 63.There is adequate evidence that the complainant did not consent to the Act. 64.On identification, the Appellant was well known to the complainant. On the material day he beckoned her outside and the complainant heeded the call as the Appellant was a worker in the home and she inquired what the Appellant wanted. It is then that the attack occurred. This was identification by way of recognition. 65.It is trite that recognition is more reliable than mere identification, as stated in Anjononi & Others v Republic [1980] eKLR, where the Court of Appeal affirmed that recognition of someone known to the witness“is more assuring, and more reliable, than identification of a stranger." 66.The Appellant was therefore properly placed at the scene of crime and the ingredient of identification was therefore sufficiently proved. 67.I have weighed the defence put up by the Appellant as against the prosecution evidence. As noted earlier, there is no evidence that the complainant harboured a grudge against the Appellant that would form a motive for the fabrication of the charges against the Appellant. In light of the prosecution evidence on record, the Appellant’s defence amounted to a bare denial and an unsubstantiated allegation of fabrication. A mere denial, without evidential support, is insufficient to displace a coherent and corroborated prosecution case. In Keter v Republic [2007] eKLR, the Court of Appeal affirmed that "a mere denial does not amount to a defence capable of creating reasonable doubt," particularly where the prosecution's evidence is firm and consistent. In this case, the complainant's detailed account clearly outweighs the Appellant's unsupported assertions. 68.Additionally, the Appellant admitted being at the homestead and having close daily access to the complainant, thereby confirming opportunity and weakening his claim of fabrication. He did not demonstrate any bad blood, dispute, or ulterior motive that PW1 or PW2 might have had to falsely implicate him. In Ndungu Kimanyi v Republic [1979] eKLR, the Court emphasized that for a fabrication defence to hold, the accused must show a clear motive or circumstances pointing to malice. The Appellant failed to do so. His assertion that the case was "framed" was a hollow allegation lacking evidential backing. 69.On the whole, am satisfied that the prosecution proved its case beyond reasonable doubt. 70.The Appellant was sentenced to 15 years' imprisonment. Sentence is at the discretion of the trial Court and an appeal Court will only interfere within established legal principles. In the case of Shadrack Kipkoech Kogo-vs-R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus as regards interference with sentence:-“sentence is essentially an exercise of discretion by the trial Court and for this Court to interfere it must be shown that in passing the sentence, the sentencing Court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered(see also Sayeka-vs-R .(1989 KLR 306)”The Court of Appeal in Bernard Kimani Gacheru vs. Republic [2002] eKLR restated that: “It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate Court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial Court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial Court on sentence unless, anyone of the matters already states is shown to exist.” (Emphasis added) 71.In the case of Republic v Elijah Munee Ndundu and another [1978] eKLR the Court while considering the purpose of penalties in criminal cases observed:-“Reformation is a fair enough consideration but not the main object of penalties in criminal cases. One of the aims of punishment is to deter the individual offender and also to deter others who maybe tempted to commit similar offences (sec Samuel v The Republic [1968] EA 1). It is an important function of any State to protect its citizens. This involves protection of society from crime and criminals."The Court went further to observe“In considering whether to impose custodial sentences, and particularly long terms of imprisonment, one consideration that plays an important role is the need to remove the offender from society. However, as stated by Lord Denning before the Royal Commission on Capital Punishment, the punishment for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them." 72.The sentence imposed by the trial Court was lawful, proportionate, and fully supported by the circumstances of the case. The Appellant was convicted under Section 3(3) of the Sexual Offences Act which prescribes a minimum sentence of ten (10) year. 73.Courts have consistently held that exploitation of vulnerability is an aggravating factor warranting a stiffer sentence. In MKK v Republic [2017] eKLR, the High Court affirmed that abusing a person with disability or diminished capacity attracts enhanced punishment due to the heightened moral blameworthiness of the offender. The trial Court therefore exercised its discretion judiciously in imposing a sentence reflective of the severity and circumstances of the offence. 74.With the result that the appeal herein lacks merit and is dismissed in its entirety. DATED SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF JULY 2026A.K. NDUNG’UJUDGE