Winnie Silvanus v Republic

was before the trial court and come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify. 4. The complainant, PA testified that on 19th December 2022, she was intercepted near the residence of an individual named Lilian and forcefully pushed into a house. Inside, she found the Appellant (Winnie) and four other neighbours: Lilian, Ashley, Emily, and Diana. PW1 recounted being restrained on a bed while the radio volume was increased to muffle her cries. 5. She testified that the group accused her of an extra-marital affair, subjected her to a physical beating, and removed her clothing. Specifically, she alleged that while Emily and Lilian held her down, fingers were forcefully inserted into her vagina. PW1 further stated that Diana photographed her naked body, her mobile phone was damaged, and Kshs 10,000 was stolen. After escaping to a vegetable stall, she alleged the Appellant later pursued her to her residence armed with a knife. On the following day, she was subjected to a secondary assault by Ashley involving a rolling pin and scalding water. 6. PW2, HK, testified that the complainant sought refuge at her house on the night of the incident, appearing visibly distressed. PW2 confirmed that PW1 made an immediate disclosure of the physical assault, the sexual violation, and the theft. PW2 sheltered the complainant until late that night. Furthermore, PW2 testified as an eyewitness to the subsequent assault the following morning, stating she personally observed Ashley beating the complainant and pouring hot water on her chest, resulting in visible burn injuries. 7. PW3, Patrick Anyanga, and PW4, Alice Macharia, provided evidence regarding the complainant's flight from the scene. They testified that PW1 ran into their well-lit vegetable stall screaming for help, pursued by the Appellant. PW3 stated he intervened to prevent the Appellant from pulling the complainant away. PW4 corroborated that the Appellant accused the complainant of interfering with her marriage. Both witnesses maintained that the lighting from streetlights and the kiosk was sufficient to clearly identify the Appellant. PW4 further confirmed that the complainant disclosed the details of the sexual assault once she had regained her composure. 8. PW5, John Njuguna, a clinician, conducted a medical examination of the complainant on 20th December 2022. He testified to observing physical trauma, including bruises on the eyelid, neck, and elbow, which he attributed to blunt force. His genital examination revealed reddening at the 6 o'clock position. He concluded that these clinical findings were consistent with both physical and sexual assault and produced the relevant medical documentation (P3 form) to the court. 9. PW6, Esther Kagera, testified to visiting the scene and recording statements from the witnesses, confirming that the accused persons were neighbours to the complainant. Under cross-examination, she acknowledged that certain items, including the knife, the photographs, the radio, and the stolen money, were not recovered. She further confirmed that no DNA samples were extracted during the course of the investigation. 10. In her defence, the Appellant, Winnie, deposed that on 19th December 2022, a verbal altercation occurred at her residence between herself and the complainant (PW1) concerning PW1’s prior relationship with the Appellant's husband (DW7). While admitting that photographs were taken of PW1 without her consent, DW1 categorically denied all allegations of physical assault, sexual violation, theft, or threatening PW1 with a weapon. She maintained that the charges were maliciously instigated due to the ongoing domestic dispute regarding her spouse. 11. DW2 (Lilian Mmboga), DW3 (AI), and DW4 (Cynthia Agallo) provided consistent testimonies denying any involvement in the incident. DW2 and DW3 asserted they were not present at the scene of the alleged assault, citing their close association with DW1 as the reason for their false implication. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2303/eng@2026-02-26 2

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DW4 stated she remained with her family and neither interacted with PW1 nor participated in any assault or property damage. They collectively maintained that the dispute was strictly between DW1 and PW1. 12. DW5 (Millicent Mmboga), DW8, and DW9 (Amuna Abdala Muslim) testified that they remained within their respective residences throughout the evening of the material date. They denied witnessing any assault, theft, or audible disturbance, noting the populated nature of the area. DW6 (Eunice Anyango) testified to observing a loud verbal quarrel outside the house and admitted to photographing the interaction without consent but maintained that no physical or sexual violence occurred inside the premises. 13. DW7 (Michael Mutuku) the Appellant’s husband confirmed the existence of a prior relationship with the complainant, attributing the conflict to a personal dispute between the two women. He testified that he was not physically present during the alleged altercation and did not witness the events described by the prosecution. 14. The appeal was canvassed by way of written submissions which have been duly considered and there is no need to rehash them. 15. In Count I, the offence of sexual assault is created by Section 5 of the Sexual Offences Act which provides that: (1) b. 16. Any person who unlawfully:a.penetrates the genital organs of another person with— i. any part of the body of another or that person; or ii. an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes; manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person’s body, is guilty of an offence termed sexual assault.” In David Odanga Wanyama v R [2022] eKLR, the ingredients of sexual assault were set out in the following terms: “ The essential elements of the offence of sexual assault are proof of penetration into the genital organs of the victim by any part of the body of the person accused of the offence or any other person or objects manipulated by the accused person for that purpose.” 17. From the foregoing, it is clear that in order to establish the offence, the prosecution must prove that there was penetration into the genital organs of the victim by any part of the body of the person accused of the offence or any other person or objects manipulated by the accused person for that purpose. 18. The Court of Appeal in the case of John Irungu v Republic, [2016] eKLR pronounced itself on the issue of penetration on the offence of sexual assault as follows:“…. “ Thus, for purposes of sexual assault, the penetration is not limited to penetration of genitals by genitals. It extends to penetration of the victim’s genital organs by any part of the body of the perpetrator of the offence, or of any other person or even by objects manipulated for that purpose.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2303/eng@2026-02-26 3

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19. The central issues for determination are whether the complainant (PW1) was subjected to sexual assault, and whether the Appellant was positively identified as a perpetrator. 20. On the element of the actus reus, the court finds the testimony of PW1 to be consistent and corroborated. PW1 provided a harrowing account of being restrained and subjected to vaginal penetration using fingers. This direct evidence is fortified by the medical findings of PW5, who recorded reddening at the 6 o'clock position of the genitalia. Such clinical findings are a "smoking gun" of recent trauma, consistent with the manual interference described by the complainant. The Appellant’s contention that the injuries were "merely" blunt force is rejected; reddening in the genital area, coupled with an immediate outcry to PW2 and PW4, establishes the sexual nature of the assault beyond reasonable doubt. 21. Regarding identification, the court notes that this was a case of recognition among neighbours. The scene was well-lit, as testified by PW3 and PW4, who observed the Appellant pursuing the complainant immediately after the ordeal. The Appellant’s own defence (DW1) places her at the scene and confirms a heated dispute, thereby providing the requisite opportunity and motive. The defence of a "mere verbal disagreement" is implausible when weighed against the physical injuries documented by the clinician and the terrified state of the victim observed by three independent witnesses. 22. Furthermore, the principle of Common Intention under Section 21 of the Penal Code applies. The evidence shows a coordinated attack where the radio volume was increased to muffle screams while various parties restrained and assaulted the victim. The Appellant’s participation in dragging the victim and later threatening her with a knife confirms her active role in the joint enterprise. 23. The failure to recover the knife or stolen funds does not vitiate the prosecution’s case; the law prioritizes credible ocular and medical evidence over the recovery of exhibits which can be easily disposed of in a populated area like Makina. 24. In view of the totality of the evidence, the court finds the prosecution’s case seamless. The medical trauma, the immediate outcries, and the positive recognition of the Appellant overbear the bare denials of the defence. The trial court properly evaluated the witnesses' demeanour and the corroborative weight of the medical report. Accordingly, the conviction for the offence of sexual assault is affirmed. 25. On Count II, the appellant was charged with the offence of malicious damage to property Contrary to Section 339 (1) of the Penal Code. 26. Turning to the offence of malicious damage to property, section 339(1) of the Penal Code states: “ Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence.” 27. The essential elements for malicious damage to property under section 339(1) of the Penal Code are ownership, damage, and wilful, unlawful causation by the accused. PW1 testified that the appellant, DW1, deliberately damaged her phone, an Infinix Note 2, when she refused to provide her M-Pesa PIN. PW2 corroborated ownership, stating that she frequently saw PW1 with the phone. 28. PW1 produced the damaged phone in court, and her evidence established that the destruction was a direct and foreseeable consequence of the appellant’s unlawful use of force. The deliberate handling and complete destruction of the phone satisfied the wilfulness element required for the offence. The conviction in count II is affirmed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2303/eng@2026-02-26 4

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29. On count III, charging the appellant with stealing contrary to section 279(a) of the Penal Code, no credible evidence was adduced to prove theft. Consequently, the appellant is acquitted of that charge. 30. Considering the totality of the evidence, the prosecution discharged its burden on counts I and II. The convictions for sexual assault and malicious damage to property are therefore substantiated and are upheld. 31. The appellant was sentenced to ten years imprisonment on the main count and ten years on the alternative count, with the sentences to run concurrently. She was further ordered to pay a fine of Kshs. 30,000/= on Counts II and III, with default to serve six months imprisonment on each. During sentencing, the court considered the appellant’s mitigation, and her status as a first offender. 32. Upon review, I find that the trial court erred in imposing the sentence on both the main and alternative counts without proper justification. Section 329 of the Criminal Procedure Act empowers courts to consider mitigation and impose a sentence proportionate to the offence, even where statutory provisions prescribe specific terms. 33. Accordingly, the appeal on sentence partially succeeds. The sentence of ten years on the alternative count is hereby quashed and set aside, while the ten-year sentence on the main count is affirmed. Additionally, the sentence in Count III is set aside. The sentence in Count I and II shall run concurrently. Orders accordingly. JUDGMENT DATED AND DELIVERED VIRTUALLY THIS 26TH DAY OF FEBRUARY 2026 _____________ D. KAVEDZA JUDGE In the presence of: Mr. Aswani for the Appellant Mr. Karanja for the Respondent Karimi Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2303/eng@2026-02-26 5

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