James Macharia Muthoni v Republic

boyfriend earlier that morning without being informed of the same. She thereafter called the appellant, whom she described as her boyfriend’s best friend. The appellant informed her that the deceased had been unwell for some time. 5. They agreed to meet at a bar where she found the appellant drinking. After he finished his drink, they proceeded to his house. Upon arrival, the appellant washed his feet and invited her to sit on the bed, which she agreed to do. She stated that she agreed to spend the night there upon the appellant’s assurance that he would not do anything to her. 6. She informed the appellant that she wished to remove her sweater and marvin, which she did. About ten minutes later, the appellant asked her to unbutton her blouse. When she declined, he reminded her that she was in his house. She eventually allowed him to unbutton two buttons of her blouse. A struggle ensued when he attempted to unbutton the rest of her blouse forcefully. He succeeded in unbuttoning it, whereupon she questioned why he was behaving in that manner despite being her boyfriend’s friend. The appellant responded that he was under the influence of alcohol and apologized, and they went to sleep. 7. About thirty minutes later, she testified that the appellant woke up and began removing her trousers. She asked him to stop, and when he did not, she started screaming. The appellant warned her against screaming, telling her that she was at his mercy. When she attempted to leave, he pulled her back onto the bed. She stated that there were soda bottles beneath the bed, which the appellant picked up and used to threaten her. He instructed her to remove her trousers, assuring her that it would remain their secret. 8. She further testified that she told the appellant she was stressed because she had a debt of Kshs. 80,000/ = relating to a piece of land that she needed to settle, and he responded that he would pay the amount as it was a small sum. The appellant then brought a belt, allegedly intending to tie her hands. Thereafter, he picked up a knife and instructed her to sit on the bed. She described the house as a single-room dwelling. 9. According to her testimony, the appellant asked her to choose between her life and removing her trousers. Fearing for her life, she complied. He then began caressing her breasts and vagina. The appellant, who was dressed in boxers and a t-shirt, attempted to have sexual intercourse with her. She crossed her legs in resistance, but he threatened to kill her, forcing her to open them. He then inserted his penis into her vagina and had sexual intercourse with her without her consent. 10. She testified that at about 3:30 a.m., the appellant informed her that she could leave whenever she wished. As it was still dark, she decided to leave at about 6:00 a.m., and the appellant escorted her to the gate. She then called her boyfriend and informed him that the appellant had raped her, but he did not believe her. Thereafter, she called Inspector Fidel of Gilgil Police Station, who arrived at the scene accompanied by another police officer. 11. It was her further testimony that she had known the appellant since 2019 as a friend of her boyfriend. She admitted that the alleged Kshs. 80,000/= land debt was fictitious and that she did not have such a debt. She also stated that although she had her phone with her throughout the night, she did not send any messages because she was uncertain of her exact location. 12. On cross-examination, she stated that although she had obtained the appellant’s number previously, they had not communicated until the material night. She clarified that she had broken up with her boyfriend in April of that year. She denied seeking money in order to settle the case. She further stated that her boyfriend had told her various things that the appellant had allegedly said, and that she called the appellant twice on 24th December 2022 in an attempt to let the matter rest. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2643/eng@2026-02-27 2

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13. On re-examination, she stated that she had called the appellant on the material night because he had been lying to her boyfriend. She denied the suggestion that she reported the incident because the appellant failed to give her money. 14. PW2, a medical doctor at Gilgil Sub-County Hospital, testified on behalf of a colleague who had examined the complainant. He stated that he had worked with the said colleague for four years and was familiar with her handwriting and signature. He informed the court that by the time the complainant reported the incident, she had already showered. Upon examination, it was noted that her external genitalia appeared normal. The hymen was broken, and a high vaginal swab revealed the presence of epithelial cells. 15. On cross-examination, PW2 confirmed that the complainant was examined on 12th October 2022 and that she reported having been assaulted on the previous day. 16. PW3 testified that he was an Inspector of Police. He stated that on 12th October 2022 at about 6:00 a.m., he received a call from the complainant, who sounded distressed and terrified. He contacted a colleague, and together they proceeded to the scene. The complainant led them to a house where she alleged that she had been assaulted. They found the appellant therein and arrested him. 17. On cross-examination, PW3 stated that the incident was entered in the Occurrence Book (OB) after the arrest. He further confirmed that the OB entry did not indicate that the complainant had screamed to attract neighbors during the alleged incident. 18. On re-examination, PW3 denied ever being in a relationship with the complainant. 19. PW4 testified that he was the police officer who accompanied PW3 to the scene and participated in the arrest of the appellant. On cross-examination, he stated that they recovered from the appellant’s house a knife which the complainant alleged had been used to threaten her. 20. The testimony of PW4 marked the close of the prosecution’s case. The trial court found that a prima facie case had been established and placed the accused on his defence. 21. The appellant testified as the sole defence witness and gave sworn evidence. He stated that on 11th October 2022, he received a call from an unfamiliar number which, upon answering, he established belonged to the complainant. She informed him that she wished to speak to him regarding a funeral relating to her boyfriend, who was a mutual friend. 22. They agreed to meet at a place known as “Kwa Jose,” where she found him eating. He informed her that he was unable to speak at that time, and she left. Later, as he was heading home, the appellant, who lived about 500 meters from the complainant’s residence, called her and informed her that he was outside her gate. She came out and agreed to accompany him to his house after indicating that she was in a hurry because their gate closed at 10:00 p.m. 23. He testified that they conversed on their way about the illness of the complainant’s boyfriend, who has since deceased. Upon arrival at his single-room house, he briefly stepped out to answer a short call. When he returned, he found that the complainant had unbuttoned her shirt. He stated that he heated water for her to wash her legs and, upon returning after disposing of the water, found her seated on the bed. 24. He joined her on the bed, whereupon she informed him that she was facing financial difficulties and required Kshs. 80,000/=. He did not respond to that request. He testified that they then began caressing each other and engaged in sexual intercourse at about midnight. According to him, the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2643/eng@2026-02-27 3

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complainant requested that he wake her at 4:00 a.m.; however, they overslept and she woke up at about 6:00 a.m. 25. He escorted her to the gate, and at that point she asked him for Kshs. 2,000/=. He told her that he would send the money later. Shortly thereafter, he received a call from the complainant’s boyfriend asking why he had raped the complainant. He then called the complainant, who was crying and accused him of rape. He stated that when he returned from the bathroom shortly thereafter, he found the complainant in the company of two men who identified themselves as police officers, and he was subsequently accused of rape. 26. On cross-examination, the appellant stated that he had known the complainant’s boyfriend since 2013 and had known the complainant since the same year. He asserted that the complainant made the report in order to ease her conscience, fearing that he would disclose certain matters to her boyfriend. When questioned about the alleged knife, he stated that a knife could ordinarily be found on a table in his house, as the kitchen area was in close proximity to the bed. 27. On re-examination, he stated that the complainant had her mobile phone with her while in his house. 28. His testimony marked the close of the defence case. Judgment was subsequently delivered on 5th May 2025, convicting the appellant and sentencing him to five (5) years’ imprisonment. 29. Aggrieved by the judgment of the trial court, the appellant lodged the present appeal seeking to have the conviction quashed and the sentence set aside. 30. The appeal is premised on the following grounds: a. That the learned trial magistrate erred in law and in fact by failing to properly evaluate the conduct of the complainant both during and after the alleged incident, which conduct was inconsistent with a claim of non-consensual sexual intercourse. b. That the learned trial magistrate erred in law and in fact by relying on medical evidence that was contradictory and inconclusive, particularly in light of the Post Rape Care Form and lack of spermatozoa or evidence of recent trauma. c. That the learned trial magistrate erred in law by unfairly dismissing the defence of the Appellant as an afterthought, thereby demonstrating bias and failing to objectively consider the totality of the evidence. d. That the learned trial magistrate erred in law by convicting the Appellant on the sole, uncorroborated testimony of the complainant, without addressing material inconsistencies and without calling any independent witnesses. e. That the trial court erred in law in its application of the doctrine of consent, by failing to adequately consider the context of the complainant’s behavior and the applicable threshold for proving lack of consent under section 43 of the Sexual Offences Act. f. That the trial court erred in law and fact by failing to sufficiently assess the credibility and motive of the complainant, particularly in light if her admitted fabrication regarding fictitious land debt, which cast doubt on her truthfulness. g. That the trial court erred in fact by failing to note that the prosecution failed to prove the case against the Appellant beyond reasonable doubt, and the resulting convicting amounted to a miscarriage of justice. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2643/eng@2026-02-27 4

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31. The appeal has been canvassed by way of written submissions filed by the respective parties, which may be summarized as follows: Appellant’s Submissions 32. The appellant contends that the prosecution failed to establish the most crucial element of the offence of rape, namely the absence of consent, as established in Republic v Francis Otieno Oyier [1985] KLR. He submits that the evidence demonstrates that the complainant herself initiated contact by calling him and arranging to meet him, first at a public place and later at his private residence, which she knew was unoccupied. He further argues that the complainant’s conduct, washing her legs, preparing for bed, and partially undressing before the alleged assault indicates behavior inconsistent with nonconsensual intercourse. 33. The appellant challenges the credibility of the complainant’s allegations regarding threats with a knife, noting that no such knife was produced as an exhibit. He further submits that while the complainant claimed to have screamed during the incident, no neighbors were called as witnesses, despite the presence of occupied houses nearby. He contends that the complainant’s delay in reporting the matter and her failure to contact anyone for assistance, despite having her phone, further undermines her claim of lack of consent. 34. He points to inconsistencies in the medical evidence, noting that the PRC form indicated she had not changed her clothes, while the P3 form suggested she had. He also highlights discrepancies in the police evidence, including the time of reporting recorded by different officers. Finally, the appellant argues that the trial magistrate failed to properly analyze his defence and, in so doing, demonstrated bias. 35. In light of these considerations, the appellant submits that the prosecution’s case was fraught with contradictions and inconsistencies of such a magnitude that his conviction is unsafe and ought to be set aside. Respondent’s Submissions 36. The respondent submits that the elements of the offence of rape are clearly set out under section 3(1) of the Sexual Offences Act No. 3 of 2006, namely: intentional and unlawful penetration of the genital organ of one person by another, and the absence of consent. 37. With regard to the element of penetration, the respondent acknowledges that while the complainant was examined on the day following the incident, both the P3 form and the PRC form indicated that no injuries were observed on her genitalia or elsewhere that would suggest the use of force. 38. On the issue of identification, the respondent notes that the appellant was positively identified as the person who engaged in sexual intercourse with the complainant on the material date. The appellant himself confirmed during his defence that he had known the complainant since 2019, thereby establishing identification. 39. Concerning the absence of consent, the respondent refers to Republic v Francis Otieno Oyier (Criminal Appeal 158 of 1984) [1985] KECA 55 (KLR), which establishes that the prosecution must prove that the complainant did not consent either by physically resisting or by being in a position where she could not freely decide whether to consent. The case further provides that if a woman yields to sexual intercourse through fear of death or duress, it constitutes rape, and it is immaterial that she may have initially consented or consented after the act commenced. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2643/eng@2026-02-27 5

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40. The respondent contends that the evidence on record clearly demonstrates that the complainant did not consent to sexual intercourse on the material date, and that she was subjected to threats to her life. 41. With respect to alleged inconsistencies in the prosecution’s evidence, the respondent submits that minor contradictions such as the PRC form indicating the complainant had not changed her clothes while the P3 form suggests she had do not fatally undermine the case. Similarly, the failure to adduce the knife that the appellant allegedly used to threaten the complainant, which PW4 stated he observed at the appellant’s house, is not fatal to the prosecution’s case. The respondent cites Munene v R [2018] eKLR for the proposition that trifling contradictions or inconsistencies in the evidence of prosecution witnesses do not necessarily render a case unsafe. 42. On the issue of whether the prosecution was obliged to call neighbors or tenants as witnesses, the respondent relies on section 143 of the Evidence Act and Keter v Republic [2007] 1EA135, submitting that the prosecution is not required to call every possible witness, but only those necessary to establish the truth. 43. Finally, on the matter of corroboration, the respondent refers to section 124 of the Evidence Act and the decision in Benjamin Mugi Mwangi & another v Republic [1984] eKLR, submitting that a court may safely convict an accused of a sexual offence on the uncorroborated testimony of a complainant, provided the court is satisfied that the complainant’s evidence is truthful. Issues, Analysis and Determination 44. This being a first appeal, the court is under a duty to re-evaluate, re-analyze and reconsider the entire evidence on record and to arrive at its own independent conclusion, while bearing in mind that it neither saw nor heard the witnesses testify and must therefore give due allowance for that fact. See Okeno v Republic [1972] EA 32. 45. Having carefully considered the record of appeal, the grounds advanced and the submissions by the parties, the single issue that arises for determination is whether the prosecution proved the offence of rape against the appellant beyond reasonable doubt. 46. Section 3(1) of the Sexual Offences Act provides that a person commits the offence of rape if he or she; intentionally and unlawfully commits an act which causes penetration with his or her genital organs; the other person does not consent to the penetration; or the consent is obtained by force or by means of threats or intimidation of any kind. 47. In the present case, there is no dispute that sexual intercourse occurred between the appellant and the complainant on the material night. The appellant admitted engaging in sexual intercourse but maintained that the same was consensual. The complainant, on her part, contended that the appellant employed force and threats to procure the sexual act. 48. Section 43 of the Sexual Offences Act provides that consent is absent where submission is obtained by force, threats, intimidation, fear of harm, or other coercive circumstances. 49. On the question of proof of absence of consent, the court in Republic v Oyier [1985] KLR 353 set out the essential elements and held, inter alia, lack of consent is an essential ingredient of the offence of rape; that the mental element consists in the intention to have intercourse without consent or recklessness as to whether consent exists; and that where a woman yields through fear of death or duress, the offence is nonetheless rape. The burden of proving absence of consent rests upon the prosecution throughout and never shifts. See Woolmington v DPP [1935] AC 462. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2643/eng@2026-02-27 6

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50. The complainant testified that the appellant threatened her with soda bottles, a belt and a knife, and forced her to choose between ‘life and removing her trouser.’ She stated that she screamed but was warned that she was at the appellant’s mercy, and that she ultimately submitted out of fear for her life. 51. A re-evaluation of the testimonies of both the complainant and the appellant reveals that they are largely in agreement as to the sequence of events leading up to the sexual encounter, the only point of divergence being whether the intercourse was consensual. That question of consent therefore constitutes the gravamen of this appeal. 52. Both parties testified that the complainant called the appellant and was informed that he was at a bar. The complainant went there, but the appellant indicated that they could not speak freely at that venue. As he proceeded home, he again communicated with the complainant. The complainant, who resided a few meters away, informed him that her sister was present in her single-room dwelling. They then agreed to proceed to the appellant’s house. Upon arrival, they washed their feet and went to bed. It is at this juncture that the complainant alleged that the appellant used threats and force to have sexual intercourse with her. 53. Section 124 of the Evidence Act permits a court to convict on the evidence of the victim of a sexual offence alone, provided the court believes the victim to be truthful and records the reasons for that belief. 54. Compliance with Section 124 requires that such reasons be expressly recorded. In Robert Wekesa Simiyu v Republic [2019] eKLR, the court held that there are no strait-jacketed reasons that must be recorded; what matters is the impression made upon the trial court by the overall evidence, and those are the reasons that must be captured. 55. In its judgment, the trial court noted that the complainant was 23 years old at the time of the incident and therefore capable of consenting to sexual intercourse. The court nonetheless expressed satisfaction that her testimony established that the appellant forcefully had sexual intercourse with her. 56. This court has subjected the entire evidence to fresh scrutiny. The incident is alleged to have occurred at about 3.00 a.m. The complainant testified that prior to the sexual act she informed the appellant that she was under stress due to a debt of Kshs. 80,000/= relating to a parcel of land. She further stated that the appellant dismissed the amount as little money, after which the sexual intercourse occurred. It was also her evidence that she had gone to meet the appellant to discuss funeral arrangements concerning her deceased boyfriend’s father, yet no such discussion appears to have taken place. 57. On cross-examination, the complainant stated that the debt narrative was fictitious and merely intended to distract the appellant. This explanation raises doubt. The complainant acknowledged that she had her mobile phone with her, that it was functional, and that she did not send any distress message. She further testified that at about 3.00 a.m. the appellant informed her that she was free to leave. Both parties agreed that at about 6.00 a.m. the appellant escorted her to the gate and she left. There is no evidence that she attempted to contact anyone during that interval, notwithstanding that she possessed the contact of the Deputy OCS, Gilgil Police Station (PW3), whom she called later that morning after leaving the premises. These circumstances are not easily reconcilable with her assertion that she was under continuous coercion. 58. The complainant further stated that she could not contact anyone because she did not know her precise location. However, she testified that she had known the appellant since 2019, and it was uncontroverted that the distance between their residences was approximately 500 meters and that they walked together to the appellant’s house. Additionally, although she claimed to have screamed when https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2643/eng@2026-02-27 7

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threatened, no neighbor from the single-dwelling units was called to corroborate that assertion. These gaps cast substantial doubt on the prosecution’s case. 59. In John Mutua Munyoki v Republic [2017] KECA 376 (KLR), the court observed that where the case turns on the evidence of the complainant as against that of the accused, particularly in sexual offences, ordinarily committed in secrecy, the court must approach such evidence with circumspection. Contradictions and inconsistencies which are material must be carefully weighed in determining credibility. 60. In the present matter, the contradictions and inconsistencies identified by the appellant are not peripheral. They go to the root of the prosecution’s case and to the credibility of the complainant as a truthful witness. The trial court did not sufficiently evaluate or reconcile these discrepancies before arriving at its conclusion. 61. In light of the foregoing analysis, this court finds that the prosecution did not discharge its burden of proving absence of consent beyond reasonable doubt. 62. Accordingly, the appeal is allowed. The conviction is quashed and the sentence set aside. The appellant shall be set at liberty forthwith unless otherwise lawfully held. DATED, SIGNED AND DELIVERED AT LODWAR THIS 27TH DAY OF FEBRUARY 2026. PATRICK J O OTIENO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2643/eng@2026-02-27 8

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