Wildred Mwema Mbatha v Republic

6. That the appellant humbly pray the Hon. Court to allow the appeal and grounds lodged in the instant without court records (proceedings) since it was drafted not to break the rules of the days of appeal. 7. Appellant also pray the Hon. Court to allow the appeal and provide appellant with court proceedings to enable him for submissions. 8. That appellant also humbly pray the Hon. Court to re-look and consider the issues which learned magistrate not considered of land issues. The appellant prays that the appeal be allowed conviction be quashed, the sentence be set aside and he be set at liberty. The respondent opposed the appeal. The Respondent’s Case 3. PW1 KK who was the complainant testified that on 1/8/2022 at 12.30pm while on the way home from the market she met the appellant who she knew as she is her neighbor. The appellant then started following her from behind and covered her face with his hand. 4. The appellant dragged her to the bush and knocked her down. He then undressed her and inserted his penis in her vagina. When he finished, he threatened to kill her if she ever discloses to any one as to what happened. The appellant demanded money from the complainant and she gave her Kshs. 600/ = cash. He then demanded her Mpesa pin and left. 5. The complainant went to Ikutha Hospital where she was treated. She then reported the matter to the police and was issued with a P3 form which was later filled and PRC form was also filled. According to the complainant, there was no eye witness but a neighbor collected sandals and a cap from the scene. The complainant realized that the appellant had withdrawn Kshs. 2,150/= which he transferred to one Mary Mwandime. 6. PW2 Dickson Lepkelem, a Clinical Officer at Ikutha Level 4 Hospital testified that he treated the complainant who gave a history of having been raped by someone known to her who also stole money from her. PW2 testified upon examination of the complainant, she had bruises on the back, head and lower limbs. Pregnancy and H.I.V tests were negative. The high vaginal swab revealed presence of spermatozoa and pus cells. He testified that he examined the complainant the same day before midnight. He produced the P3 form and the PRC form as exhibits. 7. PW3 Mutuku Mbuvi testified that he was with the appellant on the material day at his employer’s home where they were drinking traditional liquor up to 6.00pm when the appellant left. The following morning he found the cap which the appellant was wearing the previous day and some slippers. They wer handed over to the police. 8. PW4 was PC Peter Kitonga of Ikutha Police Station who testified that he is the one who arrested the appellant. He is the one who investigated the case after receiving report from the complainant that she was raped by the appellant while she was on her way home from the market. The appellant also stole Kshs. 600/= from the complainant and transferred Kshs. 2,1150/= from her Mpesa to one Mary Mwandime and disappeared with the phone. 9. PW4 called MM but she refused to record a statement. Pw4 obtained the complainant’s Mpesa statement. He also recovered the cap and slippers which the appellant was wearing on the material day, he produced them as exhibits. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4236/eng@2026-01-20 2

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Appellant’s Case 10. The appellant gave unsworn defence and told the court that he was arrested on 30/8/2022 and charged in court on 1/9/2022. That the complainant framed him due to grudges arising from a land dispute. The learned magistrate found the appellant guilty of the offence of rape and convicted him. The appellant was also charged with the offence of robbery but he was acquitted for lack of insufficient evidence. The appeal was canvassed by way of written submissions. Appellant’s Submissions 11. He submits that the court by dint of Section 362 of the Criminal Procedure Code has the power to call for records and evaluate afresh the evidence and draws its own conclusion. He relies on the case of Kiilu & Another v Republic (2005) 1 KLR 174. He submits that the issue which the court has to determine is whether he penetrated the complainant without her consent. He submits that he was not known to the complainant and was therefore not identified by the complainant. The appellant further submits that the testimony was riddle with contradictions and doubts. 12. The appellant submits that he learned magistrate acquitted him on the offence of robbery and should have acquitted him on the offence of rape under the same reasoning that the charge was not proved beyond any reasonable doubts. The appellant further submits that the complainant told (PW2) the Clinical Officer that she was raped by someone who was unknown to her at around 6.00pm. that this is a clear indication that the complainant did not identify the assaultant. 13. The appellant submits that the evidence is riddled with contradictions which should be resolved in his favour. That the testimony of PW3 has no value and should be disregarded. The appellant submits that the learned magistrate erred by failing to consider his defence. The appellant further faults the court by sentencing him to the bare minimum sentence and failed to exercise discretion after considering the mitigation. He urges the court to find that the sentence was manifestly harsh. Respondent’s Submissions 14. The respondent submits that the ingrideints which were to be proved by the prosecution wer penetration without the consent of the victim and positive identification of the perpetrator. He submits that the appellant was known by the complainant who was her neighbor, a fact that remained consistent in the proceedings. 15. On penetration the respondent submits that under Section 2(1) of the Sexual Offences Act it is defined to means “the partial or complete insertion of the genital organs of a person in to the genital organs of anther person.” H submits that penetration was proved by the testimony of the complainant corroborated by the medical evidence. It is submitted that the learned magistrate considered the defence of the appellant and rejected it. That the sentence imposed by the learned magistrate was the bare minimum despite the gravity and the trauma suffered by the complainant. Analysis and Determination 16. I have considered the evidence tendered before the learned magistrate and the submissions by the parties in this appeal. The issues for determination are: 1. Whether the appellant was identified as the perpetrator. 2. Whether penetration without the consent of the victim was proved. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4236/eng@2026-01-20 3

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17. This is a first appeal and the duty of this court is to analyse the evidence that was adduced before the learned magistrate, evaluate it itself and come up with its own independent finding. The court has to leave room for the fact that it had no opportunity to see and hear the witnesses when they testified and leave room for that. See Okeno v Republic (1972) E.A 32. The High Court while exercising its jurisdiction as the first appellate court has to consider both the facts and the law. Section 347 of the Criminal Procedure Code provides that: 1. Same as in this part provided – a. 2. 18. A person convicted on a trial held by a sub-ordinate court of the first or second class may appeal to the High Court, and An appeal to the High Court may be on a matter of fact as well as on matter of law. I now proceed to analyze the evidence and the law. A. Whether the appellant was positively identified as the perpetrator In this case it was the testimony of the complainant that the appellant was well known to her as he is her neighbor. The law on identification of a perpetrator is that recognition is better than re-identification of a stranger. The court of Appeal in Reuben Taabu Anjonomi, Benjamin Akhisa Anjonomi and Monya Anyonomi v Republic (Criminal Appeal 480, 208 and 209 of 1978) (1980) KECA 23 (KLR) (Crim) (8 January 1980) Judgment held as follows: “ This was however a case of recognition, not identification of assaullants, recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon person al knowledge of the assaulant in some form or other.” 19. The same court in the case of Kilwaqke v Republic (Criminal Appeal 129/2014) 2019 KECA 5 (KLR) (28 March 2019) (Judgment) it was stated that the case against the appellant was not funded on identification by strangers but on recognition by witnesses who knew him well, recognition is more reliable. In Kariuki Njiru & 7 Others v Republic (2001) (unreported) quoted in Merch Chelangat v Republic (20220 eKLR the court held (cited by the respondent) “ the law on identification is well settled, and this court has from time to time said that the evidence relating to identification must be scrutinized and should only be accepted and acted upon if the court is satisfied that identification is positive and free from possibility of error.” 20. The prosecution case is that the appellant was well know to the complainant. The appellant is the one states that the complainant was not known to her because he asked his name. So the complainant never expressed doubts on the identity of the appellant. She said. “I met Mwema Mbatha.” He asked me if I was Katuku. I told him I am Kanini. The complainant did not express any doubt on the identity of the appellant…She recognized him by name. the appellant in his defence admitted that himself and the complainant were not strangers as the family sold land to them. 21. I have no doubt that the appellant was well know to the complainant and was recognized as the perpetrator. Recognition is better than identification of a stranger. The appellant was well known to the complainant and there was no possibility of mistake. The testimony of Pw1 shows that she talked with the appellant. She therefore could not have failed to recognize him. I find that the appellant was recognized as the perpetrator. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4236/eng@2026-01-20 4

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Proof of Penetration 22. Penetration is proved by the testimony of the complainant corroborated by the medical evidence where possible. In this case medical evidence adduced by PW2 corroborated the testimony of the complainant. The presence of spermatozoa and injuries on her body is prove that there was penetration and force was used. An adult woman should not be made to belabor the point on particular evidence of rape. It is expected that she understands the term rape and the court should belief him unless there are material doubts in her testimony. 23. In this case the fact of rape was proved. The complainant had not consented to the act of penetration and this proved by the presence of injury on other parts of the body. The treatment notes, the PRC Form and P3 form corroborate the fact of rape – penetration by a person well known to her. Penetration as defined above, can be partial or full insertion of the genital organ. In this case penetration was full insertion due to the presence of spermatozoa. What is required to be proved is that sexual intercourse has taken place. 24. I find that the prosecution adduced sufficient evidence to prove that the appellant penetrated the complainant and had sexual intercourse with her without her consent. 25. The learned magistrate did consider the defence of the appellant in her Judgment and found that it was a general denial. The contention by the appellant cannot stand that his defence was not considered. On sentence, Section 3 of the Sexual Offences Act provides that: “ A person commits the offence termed rape if – 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. c. The consent is obtained by force or by means of threats or intimidation of any kind. 3)A person guilty of an offence under this Section is liable upon conviction to imprisonment to a term which shall not be less than ten years but which may be enhanced to imprisonment for life.” 26. The sentence is what is referred to as the mandatory minimum sentence. The sentence imposed on the appellant by the learned trial magistrate is therefore lawful. 27. It is trite law that the prosecution bears the burden of proof in Criminal Cases and the burden never shifts. I find that the prosecution discharged the burden of proof and proved the charge of rape against the appellant beyond any reasonable doubts. The sentence imposed was lawful. 28. The only intervention by this court with regards to the sentence is on the time spent in custody. The record that the appellant was remand throughout his trial in the trial court. The appellant was in remand as from 1/9/2022 upto 27/6/2024. Although the learned magistrate stated that she had considered the period that the appellant had spent in custody. There was none compliance with Section 333(2) of the Criminal Procedure Code which provides as follows: “ Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4236/eng@2026-01-20 5

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person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.” 29. The court of Appeal in the case of Ahama Abolfathi Mohamed & Another v Republic (2018) KECA while interpreting Section 333(2) of the Criminal Procedure Code held as follows: “ The appellants have been in custody from the date of arrest on 19/6/2012. By dint of Section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period the applicant had been custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the applicant in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that he proviso to Section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it meets out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellant’s sentence of imprisonment to start from the date of their arrest on 19th June 2012.” 30. The learned Magistrate fell int error when she stated that she had taken into account the time spent in custody but she failed to do the next important aspect by reducing the sentence imposed with the period served in pre-trial detention. 31. I should therefore intervene and correct the error of law and fact. The accused was arrested on 1/09/2022 and remanded in custody throughout the trial. I order that the sentence of ten years imprisonment should run form 1/09/2022 to take into account the period spent in custody awaiting trial. Conclusion 32. I find that the appeal lacks merits and is dismissed. The sentence imposed to run from 1/09/2022. The Deputy Registrar to serve an Amended Committal Warrant on the Officer In-charge of the prison where the appellant is serving the sentence. DATED, SIGNED AND DELIVERED AT KITUI THIS 20TH DAY OF JANUARY, 2026. HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4236/eng@2026-01-20 6

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