Nicholus Muema Maluti v Republic

offence and also failing to consider sharp contradictions contrary to Section 163 of the Evidence Act. 2. That the learned trial magistrate erred in law and facts by failing to adequately consider the appellant defence. 3. That the learned magistrate erred in law and in fact by basing the conviction on evidence that was below the standard of proof and charges that were not proved beyond reasonable doubts as stipulated by law. 4. That the honourable trial magistrate erred in law and fact by believing the evidence of PW1 which was unbelievable, unsatisfactory full of inconsistence and contradictions. 5. That the learned trial magistrate erred in law and in fact in finding that the prosecution has proved its case beyond reasonable doubt. 6. That the learned trial magistrate erred in law and in fact by disregarding the appellant evidence and relying heavily on medical evidence prepared relating to the missing of hymen and penetrating to secure conviction of appellant. 7. That the learned magistrate erred in law and in fact by basing the conviction on evidence that was below the standard of proof. 8. That the learned trial magistrate erred in both law and facts by failing to consider that the sentences imposed to the appellant was manifestly harsh disportionate and excessive in all the circumstances. 9. That the learned trial magistrate erred in both matters of law and facts by convicting the appellant on charges that were not proved beyond reasonable doubts as stipulated by law. 10. That the learned trial magistrate erred in law and in fact by to appellant in without corroboration of medical evidence tendered to create annextus between him and the offence. 11. That the learned trial magistrate erred in law and in fact by relying on insufficient evidence and disregarding appellants defence without giving cogent reasons. 12. That the learned trial magistrate erred in law and in fact by dismissing the appellant plausible defence which was not rebutted without offering any cogent reasons thereof. 13. That the learned trial magistrate erred in law and facts by convicting and sentencing the appellant on a case that was full of grudge and personal vendetta. 14. That the trial magistrate erred in law and fact by holding that the prosecution had proved its case against the appellant to the standard required in law whereas the evidence tendered was too weak, vogue and uncorroborated by eye witness and medical evidence. 15. That the honourable trial magistrate failed in law and fact by failing to consider that the investigation was shoddy tainted by biasness, omissions and failure to conduct DNA examination and test of the appellant specimen to link him with the offence. 16. That the trial learned magistrate erred in law and fact when she failed to consider the fact that the subject matter was based on fabrication and afterthought in the circumstances of the evidence tendered on record. 17. The learned trial magistrate erred in law and fact hen she considered extraneous matters not in evidence to sentence and convict the appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19504/eng@2025-11-06 2

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He prays that the appeal be allowed. The sentence be set aside and he be set at liberty. The Prosecution’s Case 5. PW1 FS testified that on 25/12/2014 at about 8.00pm she left Kabati on her way home with BM and DM before she reached home she met a motor vehicle ferrying Muema Maluti and Mwangangi Kasivi. She recognized Muema Kaasivi who is her neighbourt. He recognized his voice. She also knew Mwangangi Muema asked him where she was taking the thieves and he hit her with fist. She fell down. D was also hit and he fell down. Nicholas Muema told her that if she wanted the issue of thieves to be resolved, she had to have sex with him. She asked him why. He hit her with a stick and she fell down unconscious and later found herself in a house with two men, Bosco Mutua and Ndambu Kilonzo. 6. She told the court that Nicholas Muema had sex with her after dragging her to the Shamba and removing her trousers half way to below the knees. He removed her pant then insered his penis in her vagina. She became unconscious. She found herself in the house of Bosco. The next day she went home. She went to Kabati Police Post then to Kauwi Sub-District hospital. She was issued a treatment card and a P3 form. 7. PW2 BKM is the mother of PW1 is the complainant’s mother. She heard Muema Muluti telling PW1 to board a motor bike. She sent Sylvester Musyoka and NM to go and find out. They came back holding one shoe of PW1. The next day at 10.00am PW1 went home and reported to her that Muema raped her. She went to Kabati and reported. She was referred to hospital. 8. PW3 FN is a younger sister to the complainant. She corroborated the testimony of PW2. She went with Sylvester to find out what was happening. On her way she heard a voice and saw a white dress. When she got close, Nicholas called her and asked her where she was going at night. Nicholas threw a stone at her and she ran away. She did not find PW1. She then went with Sylvester Musyoka, BM and DM to search for the PW1. They went to where they found Nicholas and recovered one shoe belonging to PW1. They continued looking for PW1 but did not find her. PW1 went home the next day and she had injuries. she informed them Nicholas raped her. She went to hospital and was treated. 9. PW4 DM he was with PW1 and corroborated her testimony. That PW1 informed them that she was raped. 10. PW5 Benjamin Mwanzia Gitonga is a member of community Policing. She received a report from PW2 that PW1 met Mwema and had gone missing. He went to the house of Muema and asked her where PW1 was. He led him to the house of Bosco but Bosco was not there. The next day he learnt that PW1 was at her uncle’s homestead. He went there but PW1 did not tell her anything. Later, on 31/12/2014 he apprehended the appellant. The prosecution closed its case and the appellant and his co-accused were put on their defence. Defence Case 11. The appellant gave a sworn defence and denied that he raped the complainant as alleged. That PW1 was carried by Bosco and they left. DW2 gave a sworn defence and denied the charges. He told the court that he was not involved. The culprits were brought, confessed and apologized with clan elders. He relied on minutes of meeting held on 28/12/2024. 12. The counsel for the appellant submitted that there was no credible evidence to connect the appellant with the commission of the offence as no medical examination was done on the complainant to conclude that the offence of Rape was committed contrary to Section 3(1)(a)(b)(7) of the Sexual https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19504/eng@2025-11-06 3

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Offences Act. That no DNA was done to connect the appellant with this offence. That no medical evidence was called to corroborate the fact of rape. 13. That although the complainant testified that she reported the matter to the Police at Kabati Police Post, no Police Officer was called to confirm the allegation. That PW2 said she sent two of her children to look for the complainant and they recovered her shoe. It is submitted that he shoe was not produced in court and no explanation was offered. 14. That the evidence tendered was contradictory. The appellant submitted that his right to fair trial was violated as he was not given a chance to cross-examine the complainant. He relies on George Ngonde Juma, Peter Okoth Alingo, Susan Muthoni Nyoike where it was stated: “ That is what the constitution of Kenya requires, I mandatory terms, the court to do in every case. The accused must be given and afforded those opportunities and means, so that the prosecution does not gain an underserved or unfair advantage over the accused and so that the accused is not impended in any manner and suffer unfair disadvantage and prejudice in preparing his defense; confronting his accusers; and harming himself in his defense; and so that no miscarriage of justice is occasioned.” Analysis and Determination 15. I have considered the proceedings before the lower court and the submission. The issue that arises for determination is whether he conviction should be upheld or not. In Okemo -vs- R (1972) EA 32 it was held that an appellate court has a duty to analyze the evidence and came with its own independent finding. 16. I have considered the evidence. The prosecution did not adduce sufficient evidence to proof the charge of rape. No medical evidence was tendered. The evidence was contradictory and unreliable. The testimony of the complainant was not corroborated as no police officer was called to confirm that the matter was ever reported to the police. The evidence was contradictory, insufficient and fell short of being sufficient to proof the charge beyond any reasonable doubts. 17. The appeal has merits. I allow it. I set aside the conviction and sentence. I order that the appellant be set at liberty unless otherwise lawfully held. DATED, SIGNED AND DELIVERED AT KITUI THIS 6TH DAY OF NOVEMBER, 2025. HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19504/eng@2025-11-06 4

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