Adan Mohammed v Republic

a. That the learned Trial Magistrate erred in matters of the law and fact by failing to take into account the appellants’ defence. b. That the learned trial magistrate erred in both matters of law and fact in holding that the prosecution had proved its case beyond reasonable doubts when in fact it had not. c. That the learned Trial Magistrate still erred in both matters of law and fact in failing to independently analyze and/or evaluate the evidence on record hence an erroneous determination. d. That the learned trial Magistrate erred in failing to appricate and find that all the preferred charges against the appellant had not been established and proved as required by law. e. That the learned trial Magistrate erred in law and fact in imposing a very harsh and excessive sentence without considering the appellants mitigation, and the circumstances of the case. f. That appeal has overwhelming chances of Success. B. Prosecution Case 5. PW1 BA testified that she was 19 years old and was a casual labourer based at Isiolo town. She recalled that on 30.08.2024, they had received information that her grandmother was unwell and together with her sister(PW2), left their home at Sololo township using public means and alighted at Stage 44, at around 8.00pm, where they got a boda boda rider (the appellant) to take them to Badasa at a cost of Ksh 200/-. The appellant advised them that the area was not safe and offered to take them to his sister’s house, where they could spend the night and continue with their journey on the following day. 6. He took them to a room near Toba Mosque and told them be comfortable therein. To their surprise, they did not find the appellants’ sister and wondered where she was, but since they were tired, opted to just sleep. Later in the middle of the night, the appellant came back and insisted that one of them must have sex with him in the next room, which appeared to be a rental house. They refused to heed to his advances, and this made him mad, and he started to assault them and threatened to harm them using a borana spear, which he had. 7. As they continued to resist, the appellant hit her with the blunt side of the said spear and given the eminent danger they faced they both undress as directed by the appellant and even removed their headscarf. The appellant then removed his cloths and started to rape her until he released his semen in her. After he was done with her, he turned over and proceeded to also rape, PW2 and after a while returned and raped her again. 8. The following morning, the appellant allowed PW2 to leave first and later also allowed her to leave, she went to her auntie’s house, who saw her swollen eye and inquired from her what had happened. she explained their unfortunate ordeal and started to search for PW2, whom they later met, and she informed her that she had already reported the incident at the local police station and that she too was required there to go record her statement. She also later sought treatment at the local hospital and identified the accused as the person who raped them on the material night. 9. Under cross examination, PW1 confirmed that she could recognize the accused as she had ample time to see him at the motorcycle stage and at the room where they spent the night, which had electric light. She also reiterated her evidence as to what occurred on the material night and confirmed that in forcing them to give in, the appellant had assaulted her and hurt her eye for which she had sought treatment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1865/eng@2026-02-17 2

page 2 of 10

10. PW2 HG corroborated PW1 evidence, and confirmed that after alighting at stage 44, they had requested the appellant to take them to Badassa, where they were to see their ailing grandmother. He advised them that since it was dark, the road was insecure and offered to take them to his sister’s house where they would spend the night and proceed with their journey on the following day. They proceeded to the said house, which was a two bedroomed house and had electricity light. They secured the door using a bend nail and eventually slept until later at night, when the accused accessed the room and demanded to have sex with one of them. 11. Despite their resistance, the accused took a knife and threatened to harm them if they did not remove their clothes. He further punched PW1 on the eye and hit her on her back with the blunt side of the knife he was holding, Further the accused kept prodding her back with the borana spear, which he had and fearing for their lives they proceeded to undress, after which the accused also undressed and started to have sex with PW1. After he was done, he turned his attention on her and also proceeded to rape her and then went back rape the accused until morning. 12. Early in the morning she requested the accused to release her as she had a young child who needed her attention. The accused took her phone and directed her to leave the house, with threats that if she reported the matter to the police, he would harm her. She went directly to the local police station, where she reported the incident and was given police escort back to the incident scene, where the police broke the door and found the accused sleeping naked, and proceeded to arrest him. The borana spear was also recovered therein. Shortly thereafter, she met PW2 at their auntie’s place and they went and recorded their statements at the police station. She identified the appellant as the person who raped them on the material night. 13. Under cross examination, P2 reiterated her earlier evidence and confirmed that she had positively identified the accused and that he had taken advantage of the trust they had placed in him. She was also present when he was arrested and was the one who directed the policemen to the appellants house. 14. PW3 Amos Wafula Lusimbo, a clinical officer attached to Dukana Health Centre, recalled that on 31.08.2024, PW2 aged 24 years came for check up at Marsabit county referral hospital with a history of having been raped. He examined her and confirmed that she had multiple bruises around her left shoulder, but her genital organ was intact. The laboratory test revealed plus cells and negative tests for HIV. He filled in the P3 form and PRC form and classified the degree of harm. Under cross examination, PW3 clarified that he attended PW2 on 01.09.2025 and that apart from the bruises on her shoulder, she did not have any bruise on her gentalia, apart from an old scar caused by genitalia mutilation. 15. PW4 Diba Diqa Hallo confirmed that he too was a clinical officer, and he attended to PW1 on 01.09.2025 at Marsabit county referral hospital. She gave a history of having been raped by a person known to them at Manyatta Jillo and was not willing to be re examined again as she had previously been examined on 31.08.2025. From his external physical examination he confirmed that PW1 suffered from a swelling below her left eye, blunt injury on the posterior chest near the scapular that was still painful and throbbing and assessed her injuries as harm.PW4 also had the benefit of seeing the medical notes of the medical officer who examined PW1 on 31.08.2025 and produced the said medical treatment notes, PRC form and P3 form as exhibits before court. 16. Under cross examination, he confirmed that PW1 was examined by his colleague on 31.08.2025 at night and on his second examination he just observed the external injuries sustained. 17. PW5 PC Samuel Rugut, confirmed that on 31.08.2025 at around 09.00hours, he was at the police station, where he was summoned by the OCS, who informed him of the rape incident. PW2 explained https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1865/eng@2026-02-17 3

page 3 of 10

to him what had transpired, after which he mobilized other officers and went to arrest the accused person at manyatta jillo. When they arrived at the scene, the found the door locked and forcefully entered therein, where the found the appellant sleeping necked on his bed. PW2 identified him as their assailant, and they proceeded to arrest him. 18. When the accused and the PW2 were taken to Marsabit county referral hospital for examination, the accused kept on shouting that PW2 was jealous because he had not satisfied her sexually, the way he had satisfied the other lady (PW1). Later on in the cause of that day, they also got hold of PW1 and noted the injuries she had sustained as a result of resisting the accused unwanted advances. She too told them what transpired and it corroborated with PW2 evidence. He later recorded the witness statement of all the parties concerned and eventually charged the appellant with the offences stated before the court. 19. Under cross examination, PW5 confirmed that they broke the appellants door to access his house and found him sleeping necked on his bed. They also recovered a Borana spear, but not the knife, which they were told he would normally carry with as he drove his motorcycle. They also did not photograph the crime scene but relied on the evidence of PW1 and PW2 to have him charged before court. 20. PW6 George Kaguta, the government analyst confirmed that on 31.10.2024 he did receive purple pants with white linings in a Khaki envelope from PC Rahma Kiano, who had also brought along the accused person from whom they took buccal swab (saliva) from his mouth. PW2 was also present and her buccal swab too was extracted. He subjected the purple panty for DNA analysis but did not find any stain of blood or spermatozoa. They also tried to generate epithelial fraction (cells) from the person owning the said pant but also failed to get any DNA. He attributed this failure to the probable fact that the pant had been washed and cleaned before being presented to them. Since there was no DNA profile found, there was no need to generate buccal swap profiles of the victims as there was nothing to compare the same with. 21. PW7 PC Rahma Kiano of Marabit police station confirmed that she was the investigating officer of the case and recalled being handed over this case by the OCS to investigate. She interviewed PW2, who narrated what had occurred and expressed fear for the safety of PW1, whom she was with but did not know about her whereabouts. She accompanied PW2 to Marsabit county referral hospital and later that evening PW1 also came to the police station and recorded her statement. On 31.10.2024 she forwarded the pant for DNA examination and confirmed that it is the accused person, who was arrested on the material morning on suspicion of having raped both PW1 and PW2. 22. Under cross examination PW7 confirmed that she was the one who accompanied the accused and PW2 to hospital, where they were examined, though she did not visit the scene of the incident. She also insisted that there was sufficient evidence, which established that the appellant had forced himself on PW1 and PW2 and thus had been rightly charged before court. 23. The prosecution closed their case at that point, and the accused was placed on his defence and gave sworn evidence. C. Defence Case 24. The appellant stated that he was a resident of Manyatta Makaa within Marsabit town and worked as a turn boy of a water boozer lorry, which he would also help drive. He recalled that on 31.08.2024 at about 7.30am, he had woken up and was preparing to go to work, when the police arrived and knocked on his door. When he opened the door, they entered his house, where upon they conducted a search and found nothing except for his phone and Kshs.6,500/= which he had. He clarified that he resided within a compound that had 8 rental units, all of which were occupied by his family members. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1865/eng@2026-02-17 4

page 4 of 10

25. As regards the rape charge, he faced, he confirmed that he only saw one of the complainant’s when they were taken to hospital for medical examination but did not know both of the said complainants. He pointed out that PW5 and PW7 gave contradictory evidence surrounding his arrest and had been taken to the government chemist two months later to extract his buccal swap, which was highly irregular. Be as it may, the results of the said process did not show any link to the crime and re-enforced his assertion that he was innocent. 26. He further pointed out that his house was not in a bush and was surrounded by other neighbours and a Mosque, yet none of the said neighbors heard any noise and/or were called as prosecution witness to corroborate the complainant’s evidence. Ultimately the evidence presented was not watertight and did not demonstrate that he had committed any offence and thus urged the trial court to acquit him of the charges faced. 27. The trial court did consider the evidence presented and found the appellant guilt of the offence of rape as charged under count (i) and (ii). After mitigation she sentenced the appellant to serve fifteen (15) years in jail for raping PW1 and twelve (12) years in jail for raping PW2. The said sentences were to run concurrently. D. The Appeal i. The Appellant’s Submissions. 28. The appellant submitted that the trial magistrate erred in convicting him based on contradictory and unsatisfactory evidence, especially considering that of the clinical officer’s, who examined both complainants had found their genitaila to be intact, which disapproved the rape allegation. He also accused the investigating officer of arraigning him to face the charges before court, yet there was no evidence linking him to the said crime. Reliance was placed in the case of Sawe Vs Republic (2003) KECA 182 (KLR), where it was held that strong suspicion could not be used as a basis to convict an accused person, unless the inculpatory facts were inconsistent with his innocence. 29. The appellant also flagged out several inconstancies and what in his opinion pointed to the fact that the prosecution witnesses gave untruthful evidence, which rendered the prosecution case to be unreliable, since the said inconsistencies were not minor and went to the root of the facts which were alleged to have occurred. Reliance was placed in Dickson Elia Nsamba Shapwata & Another Vs Republic, CR Appeal No 92 of 2007 and John Mutua Vs Republic (2007) KESA 376 (KLR) where the issue of credibility of witnesses were discussed. 30. He reiterated that there was no proof of penetration established either by the complainants and/or through medical evidence, and since the exhibits produced did not link him to the crime, the trial magistrate ought to have given him a benefit of doubt. The evidence presented lacked corroboration was weak, inconsistent and the proof beyond reasonable doubt was not established. Reliance was placed in the case of Woolmington Vrs Dpp 1935 AC, 462 and also Miller vrs Minister of Pensions 1942 AC. 31. The appellant thus prayed that this court finds favour in his Appeal and be pleased to allow the same against conviction and sentence. ii. The Respondents Submissions 32. The respondent submitted that the evidence presented adequately proved that the appellant had intentionally and unlawfully raped both the complainant’s, given that they had not consented for him to having sex with them. Thus even though the medical evidence did not yield much in terms of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1865/eng@2026-02-17 5

page 5 of 10

evidential value, other the circumstantial evidence corroborated the occurrence of the rape incident, which therefore rendered the appellant conviction safe. Reliance was placed in the case of Kassim Ali Vs Republic (2006) KECA 156 (KLR) & Republic Vs Oyier (1995) KLR 353, to emphasize on this point. 33. As regards the DNA evidence, it was to be noted that the panty was taken to the government analyst two month after the incident had occurred and that explained why the analyst was not able to extract any DNA sample therefrom. The complainants had positively identified the accused as the person, who raped them and directed the police to his house on the following morning where he was arrested. That was not coincidental as they were not parties known to each other before. 34. Finally, on the sentence passed the appellant had not shown that there was any manifest error on the sentence passed as the trial Magistrate had exercised her proper discretion in giving a higher sentence than the minimum provided for under the sexual offences Act. 35. The respondent thus prayed that the appeal filed against both conviction and sentence be dismissed. E. Anlysis & Detrmination 36. This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up with its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor. This court is guided by The Court of Appeal case of Okeno – VS – Republic (1972) EA 32 where it was stated as follows: “ An appellant is entitled to expect the evidence as a whole to be submitted to a fresh 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”. 37. Also in Peter’s vs Sunday Post(1958) E.A. 424 it was said that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower court finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the magistrate's findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses. 38. Having considered the lower court record, the grounds of appeal and the submissions of the parties, I find the following as issues for determination; Whether the case proved the case beyond reasonable doubt and secondly, whether the sentence passed was manifestly harsh and excessive. i. Whether the prosecution case was proved beyond reasonable doubt. 39. In this case, the Appellant was charged with the offence of rape contrary to Section 3 of the Sexual Offences Act No 3 of 2006 which provides as follows: 1. A person who commits the offence termed as rape if; a. He or she intentionally and unlawfully commits an act which causes penetration with is or her genital organs; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1865/eng@2026-02-17 6

page 6 of 10

40. 41. 42. b. The other person does not consent to the penetration, or c. The consent is obtained by force or 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 ten years but which may be enhanced to life imprisonment. The key ingredients of the offence of rape created in section 3(1) of the Sexual Offences Act include; (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. In the case of Republic vs. Oyier [1985] KLR 353 the Court of Appeal held that; “ 1. The lack of consent is an essential element of the crime of rape. The mens rea in rape is primarily an intention and not a state of mind. The mental element is to have intercourse without consent or not caring whether the woman consented or not. 2. To prove the mental element required in rape, the prosecution had to prove that the complainant physically resisted or, if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist. 3. Where a woman yields through fear of death, or through duress, it is rape and it is no excuse that the woman consented first, if the offence was afterwards committed by force or against her will; nor is it any excuse that she consented after the fact.” On the element of penetration, the general rule is that even without considering the presence or otherwise of medical evidence, an offence of this nature can be proved by oral evidence of a victim of rape or circumstantial evidence. This position is fortified by the holding of the Court of Appeal in Martin Nyongesa Wanyonyi vs Republic Criminal Appeal No. 661 of 2010 (Eldoret), citing Kassim Ali v Republic Criminal Appeal No. 84 of 2005 (Mombasa), where 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.” 43. In the present appeal, both PW1 and PW2 did not know the appellant and when they alighted at Moyale stage/ stage 44, they found him offering transport services using his motor bike and negotiated for a ride to their grandmother’s house at Badasa. They in all honesty believed that the appellant would safely transport them to their destination, only for him to insist that it was not safe since it was already late and offered to house them at his sister’s house, which turned to be his own house for the night. 44. Both the complaints believed him, though with a pinch of salt, since they did not meet the accused sister at the house where he took them, but they opted to sleep and resume their journey on the following day. Deep into the night the appellant returned and insisted on having sex with one of them. He physically https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1865/eng@2026-02-17 7

page 7 of 10

assaulted both the complainants and forced them to have sex with him. On the following morning after he released PW2,she directly went and reported the incident at the police station and the appellant was arrested a few hours later, while still sleeping within the same house, where he had raped both PW1 and PW2. 45. An independent review PW1 and PW2 evidence confirms that they succinctly explained in detail what transpired on the material night, and this evidence was corroborated by the P3 forms, which brought out the injuries they sustained, while trying to resist the appellants’ unwanted advances and the fact that PW2 reported this incident immediately after being released and took the police directly to the accused house where he was arrested. 46. It should also be noted that the complainants were not known to the accused before this encounter and therefore had no reason to lie about what transpired on the material night. The trial magistrate therefore cannot be faulted in holding that the accused unlawfully caused his penis to penetrate the vagina of PW1 and PW2 and that they did not consent to the said overt sexual assault/ rape that occurred. 47. Secondly the appellant emphasized at length in his submissions that the evidence adduced was inconsistent and contradictory. In particular he pointed out that the medical evidence had exonerated him as physical examination had revealed that there were no fresh scars in the complainants vagina to prove penetration, no victim’s was found at the crime scene, there was contradiction as to whether he had a sword or a knife, which he used to threaten the complainants and that the police officers had given different versions of event as to who was present during his arrest. 48. The law on contradictory or inconsistent evidence is settled that grave contradictions unless satisfactorily explained will usually but not necessarily lead to evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case. 49. In Willis Ochieng Odero vs. Republic [2006] eKLR, the Court of Appeal held: “ As for the contradictions in the prosecution evidence it may be true that such contradictions, particularly with regard to the date indicated on the P3 form as the date of the offence, is different. But HCCrA 17 of 2018 Page 26 that per se is not a ground for quashing the conviction in view of the provisions of section 382 of the Criminal Procedure Code.” Also see Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6: 50. In Joseph Maina Mwangi vs. Republic CA No. 73 of 1992 (Nairobi) the Court of Appeal held that: “ In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the working of Section 382 of the Criminal Procedure Code, viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentence.” 51. In this case, as already explained, the occurrence of a rape incident, is a question of fact, which can be proved by the oral evidence of the victim and supported by the circumstantial evidence adduced in support thereof. Nothing therefore turns on the findings of the medical evidence presented, which issues has already been determined above. 52. On the other inconsistencies raised, I have myself subjected the evidence adduced to fresh scrutiny and though it is true that there were minor inconsistencies in the evidence of the said witnesses, which is https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1865/eng@2026-02-17 8

page 8 of 10

common, I am unable to find that the same were material enough to warrant interference with the decision of the trial court. ii. Sentence 53. As regards the sentence passed, This Court is guided by the principles in the Court of Appeal case of Bernard Kimani Gacheru vs. Republic [2002] eKLR where it was stated as follows: “ 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, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with the 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 stated is shown to exist.” 54. Sentencing is the discretion of the trial court, but the court should look at the facts and the circumstances in their entirety to arrive at an appropriate sentence. The Court of Appeal in Thomas Mwamba Wanyi Vs Republic (2017)eKLR cited the decision of the Supreme Court of India in Alister Antony Pereira Vs The state of Maharastra at paragraph 70 – 71 where the court held; “ Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate and proportionate sentences commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles; twin objective of sentencing policy is deterrence and correction. What sentence would meet the end of justice depends on the facts and circumstances of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all the attendant circumstances. The principle of proportionality in sentencing a crime done is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment must bear relevant influence in determining the sentence of the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for the award of the appropriate sentence.” 55. Section 3(3) of the Sexual offences Act, No 3 of 2006, provides that a person found guilty of the offence of rape, shall be sentenced to a term , which shall be not less than ten (10) years, but which may be enhanced to life imprisonment depending on the circumstances of the case. 56. I have considered the sentence meted out on the appellant, the circumstances surrounding the case, the nature of the offence and all the attendant circumstances. The principle of proportionality in sentencing for a crime committed is well entrenched in criminal jurisprudence and in deserving circumstances, courts based on current jurisprudence have sentencing discretion, to consider and arrive at an appropriate and deserving sentence while balancing the delicate interest of the society, victims, affected families and the accused. 57. The sentence imposed on the appellant was lawful and it has not been shown that the said sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1865/eng@2026-02-17 9

page 9 of 10

factor or took into account some wrong material or acted on a wrong principle. There is therefore no basis of interfering with the same and this ground of appeal too fails. F. Disposition 58. 59. Having considered the merits of this Appeal, and the grounds of the Appeal raised I do hold as follows. i. The appeal against both and sentence conviction has no merit and the same is dismissed. ii. Right of Appeal 14 days. It is so ordered. JUDGMENT READ, SIGNED AND DELIVERED IN VIRTUALLY COURT AT MARSABIT THIS 17TH DAY OF FEBRUARY 2026. FRANCIS RAYOLA OLEL JUDGE Delivered on the virtual platform, Teams this 17TH day of FEBRUARY 2026. In the presence of:Present from Nyeri maximum Prison ………………………………… Appellant Mr. Mburugu …………………………………For O.D.P.P Mr. Jarso …………………………………Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1865/eng@2026-02-17 10

page 10 of 10