Benard Opiyo Mukanda Alias Jemaa v Republic

house, on seeing PW4 and his group took to his heels but was pursued by members of the public arrested and brought to the scene whereat he was re-arrested. 3. PW2, confirmed that he had known the victim for long and was mentally challenged. He also confirmed participating in tracing her to the appellant’s house and the appellant’s flight on seeing them approach and his subsequent apprehension. PW3, a clinical officer at Butere Sub-County Hospital, examined the victim and found whitish discharge in her private parts. Laboratory analysis revealed epithelial cells, which he interpreted as evidence of penetration. He also tendered in evidence the victim’s P3 form, treatment notes, and mental assessment report. Lastly, the investigating officer, PW5, narrated how she escorted both the victim and the appellant to Butere Sub-County Hospital for medical examination. She later took the victim to Kakamega County General Hospital, where Dr. Mbiti assessed her and concluded that she was mentally challenged. Due to her aforesaid condition, she was unable to testify in the trial court. 4. When placed on his defence, the appellant gave a sworn statement denying the charge. He claimed that he was attacked by villagers led by PW2, beaten by an administration policeman, and framed with the ofience. He stated that he did not know the victim before the day of arrest and only saw her on the way to the police station. He insisted that his house had been left locked and denied that the victim was found therein. 5. The trial court in its judgment, believed the prosecution witnesses and found that the appellant had locked up the victim in his house. It accepted the medical evidence as proof of penetration and held that the victim being mentally impaired, could not consent to sexual intercourse under Section 43(4) (e) of the Sexual Offences Act. The appellant was accordingly convicted and sentenced to twenty years’ imprisonment. 6. Aggrieved, the appellant lodged a first appeal in the High Court of Kenya at Kakamega, on grounds that the trial court erred in disregarding his alibi defence; relying on witnesses who were not victims; contradictory testimony was admitted; that the victim did not testify and no identification parade was conducted; that the medical evidence was insufficient to prove penetration; that the finding that he was caught “red-handed” lacked photographic proof and that the charge sheet date difiered from the evidence. 7. The first appellate Court re-evaluated the evidence afresh and noted that while the medical evidence was weak, particularly the reliance on the epithelial cells found in the victim’s vagina which does not necessarily point to penetration, the law does not require medical proof alone to establish rape, as oral and circumstantial evidence may suffice. That the victim was indeed mentally impaired, as confirmed by her mother, the village elder, the Assistant Chief, and the medical report by Dr. Mbiti; and that the circumstantial evidence linking the appellant to the ofience was cogent as the victim was found locked inside the appellant’s house, the appellant fled upon seeing the witnesses, and he was arrested shortly thereafter. These circumstances formed a complete chain pointing to his guilt. The first appellate court concluded that the trial court had properly convicted the appellant, as the victim could not consent to sex by virtue of her mental disability. The appeal was accordingly dismissed in its entirety. 8. The appellant being dissatisfied with the said judgment has through this second appeal sought to challenge the first appellate court’s judgment on grounds that penetration was not proved beyond reasonable doubt, reliance on weak circumstantial evidence, identification of the perpetrator was not proper, his defence was dismissed without proper evaluation, the conviction was based on conjecture and suspicion, the sentence imposed was manifestly harsh and excessive, and that the two courts below failed to consider his mental illness at the time of the alleged ofience. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/612/eng@2026-03-13 2

page 2 of 5

9. When the appeal was called out for plenary hearing, the appellant appeared in person from Kisumu maximum prison, while the respondent was represented by Ms. Busienei, learned Prosecution counsel. Both parties elected to rely on their respective written submissions that they had filed and exchanged but with limited oral highlights. 10. The appellant submitted that both the two courts below erred in convicting him on the basis of weak circumstantial evidence and inconclusive medical findings. He contended that penetration was not proved beyond reasonable doubt and that the evidence of PW1, the victim’s mother, required corroboration as she testified as an intermediary. He emphasized that contradictions in the prosecution’s case, including inconsistencies on the dates the victim went missing and the ownership of the house where she was eventually found should have been resolved in his favour. He maintained that his defence of fleeing due to attack by villagers was improperly misinterpreted. 11. On identification, he submitted that the first report indicated the perpetrator was “physically unknown,” thereby defeating later claims of recognition, citing Terekali & Another v Rex [1952] EACA and Lasarau v Republic [1988] KLR 783 in support thereof. He further argued that medical evidence based on epithelial cells being found in the victim’s vagina was not conclusive proof of penetration, relying on PKW v Republic [2012] eKLR, for the proposition. He reiterated that suspicion alone cannot found a conviction, quoting P.O.N v Republic [2019] eKLR, where the Court of Appeal held that “no amount of evidence based on suspicion, no matter how strong, may be a basis for conviction.” He also challenged the sentence of twenty years as manifestly excessive, submitting that Section 333(2) of the Criminal Procedure Code required credit for time spent in custody before his conviction and sentence be factored in. Finally, he urged that his psychiatric condition at the time of the alleged ofience should have been considered, invoking Wakesho v Republic (Criminal Appeal No. 8 of 2016) (2021) KECA (KLR) thereof. Eventually he prayed for the appeal to be allowed in its entirety. 12. In opposing the appeal, counsel for the respondent urged that both the conviction and sentence be upheld and the appeal dismissed. She submitted that the prosecution had proved all the essential ingredients of rape beyond reasonable doubt as required namely; penetration, lack of consent, and identification of the perpetrator. On penetration, PW1 had testified that her mentally challenged daughter disappeared from her home and was later found locked inside the appellant’s house, while PW3, the clinical officer, examined her and found whitish discharge and epithelial cells, concluding that penetration had occurred. 13. On lack of consent, counsel relied on Republic v Oyier, Criminal Appeal No. 158 of 1984 (Kisumu Court of Appeal), which held that lack of consent is an essential element of rape, and emphasized that under Section 43(4)(e) of the Sexual Offences Act, a mentally impaired person cannot legally consent to sex. The evidence of PW1, PW2, PW4, and Dr. Mbiti’s report all confirmed that the victim was mentally unstable and mute, hence incapable of consenting to a sexual act. On identification, counsel submitted that the victim was found locked in the appellant’s house, and his act of fleeing upon seeing the witnesses was proof of his guilt, amounting to sufficient circumstantial evidence of rape. 14. On sentence, counsel maintained that the trial court’s reasoning regarding sentence was apt and cannot be faulted. She noted that the appellant was a serial rapist as he had a previous conviction for rape in Butere Criminal Case No. 35 of 2015 and, sentenced to fourteen years, and upon release he repeated the ofience with the victim. The twenty- year sentence imposed on the appellant was therefore lawful, proportionate, and within the discretion of the trial court. In conclusion counsel maintained that the appeal was devoid of merit and ought to be dismissed in its entirety. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/612/eng@2026-03-13 3

page 3 of 5

15. This is a second appeal, and as such this Court’s jurisdiction is confined to consideration of matters of law only and will not interfere with concurrent findings of fact by the two courts below unless such findings were based on no evidence, were the result of a misapprehension of the evidence, or the courts acted on wrong principles of law as was held in Chemagong v Republic [1984] KLR 611 and M’Riungu v Republic [1983] KLR 455. 16. The issues of law in this appeal that calls for our determination are whether the ofience of rape was proved beyond reasonable doubt and whether the sentence imposed was lawful, proportionate, and based on correct principles. 17. The law requires the prosecution to prove penetration, absence of consent, and identification of the perpetrator for a conviction for rape to be founded. We note that the trial court had relied on the evidence of the presence of the epithelial cells in the victim’s vagina as proof of penetration. The first appellate court correctly found this was evidence of the weakest kind and correctly rejected it. While medical evidence may corroborate penetration, its absence or inconclusiveness is not fatal if other evidence proves the ofience, as was held in Kassim Ali v Republic, Cr. App. No. 84 of 2005 and AML v Republic [2012] eKLR. The first appellate court then proceeded to establish penetration and indeed other elements of rape through circumstantial evidence. Circumstantial evidence can only form a basis for conviction if the inculpatory facts lead to one rational inference of guilt after considering the defence, as was stated in Sawe v Republic [2003] KLR 364 and Abanga alias Onyango v Republic, Cr. App. No. 32 of 1990. 18. A mentally impaired person cannot in law consent to sexual intercourse, and the mens rea in rape is the intention to have intercourse without consent or not caring whether the victim consented, as held in Republic v Oyier (supra) and Section 43(4)(e) of the Sexual Ofiences Act. Further where identification is challenged and the victim does not testify, a conviction may rest on circumstantial evidence if the chain is complete and excludes any reasonable hypothesis of innocence. So in this case, it does not matter that the victim did not testify. 19. In the present case, the two courts below concurrently found that the victim, medically assessed as mentally challenged, was found locked inside the appellant’s house, the appellant fled upon seeing the witnesses manifesting his guilt but was chased by members of the public and arrested shortly thereafter. The appellant did not deny that the house belonged him. Indeed he conceded as much in his defence. He also confirmed that when he left for his brother’s house, he locked the house from outside. Upon her examination by PW3, epithelial cells were found in her private parts. Much as the trial held and correctly so, that this evidence was not sufficient to establish penetration, but in our view forms a strand of circumstantial evidence pointing to the appellant as the perpetrator of the crime. 20. The complaint by the appellant that he ought to have been subjected to a police identification parade has no merit at all. Indeed, it would have been superfluous as he was arrested in the presence of the witnesses who would have been called upon to identify him in such a parade. Further, they all knew him prior to the commission of the ofience. In a nutshell and in our view and just as the trial court, the strands of circumstantial formed a complete chain pointing to the appellant’s guilt. Therefore, applying Chemagong v Republic (supra), there is no misdirection of law demonstrated to warrant interference with these concurrent findings, and in terms of Kassim Ali and AML (supra), reliance on circumstantial evidence to establish penetration and identity of the perpetrator of the crime was lawful. 21. On sentence, this Court will not interfere with the sentence imposed by the trial court and confirmed by the first appellate court unless it is illegal, based on a wrong principle, or manifestly excessive or https://new.kenyalaw.org/akn/ke/judgment/keca/2026/612/eng@2026-03-13 4

page 4 of 5

inadequate, as held in Ogalo s/o Owuora v R [1954] 21 EACA 270, Wanjema v R [1971] EA 493, and Bethwel Wilson Kibor v Republic [2009] eKLR. Sentences under the Sexual Offences Act must reflect the gravity of the ofience and victim vulnerability, including mental disability, and prior relevant convictions may be considered as aggravating factors. 22. In this case, the twenty-year term imposed fell within the lawful range for the ofience and reflected the victim’s mental impairment and the appellant’s prior record. No wrong principle in assessing proportionality has been shown to justify our interference. 23. The appeal on both conviction and sentence therefore fails, as the concurrent findings that the ofience of rape of a mentally impaired person was proved beyond reasonable doubt were based on correct legal principles and a proper appreciation of circumstantial and corroborative evidence. The sentence imposed is neither harsh nor excessive but within permitted range. DATED AND DELIVERED AT KISUMU THIS 13TH DAY OF MARCH, 2026. ASIKE-MAKHANDIA ………………………………… JUDGE OF APPEAL H.A. OMONDI ………………………………… JUDGE OF APPEAL L. KIMARU ……………………………… JUDGE OF APPEAL I certify that this is a true copy of the original DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/612/eng@2026-03-13 5

page 5 of 5