Republic v James Kipkemi Alias Makini

and in fulfilment of its obligation revisited the evidence bearing in mind that the trial court had the benefit of seeing and hearing the witnesses. 5. In that regard, the prosecution evidence against the Appellant through its five [5] prosecution witnesses [i.e. PW1, 2, 3, 4 and 5] was considered against that of the Appellant and his witnesses [DW2 and DW3] in defence. In this court’s opinion what clearly emerged as the main issue for determination was whether the Appellant obtained the Complainant’s consent in order to engage in sexual intercourse with her. In other words, was there a consensus between the Appellant and the Complainant [PW1] to engage in sex. 6. Section 3 of the Sexual Offences Act defines the offence of rape and states that a person commits rape if they intentionally and unlawfully cause penetration with their genital organs into another person’s genitals, anus or mouth without consent, or if consent is obtained by force, threats or intimidation. This definition in essence covers nonconsensual penetration or sexual intercourse. 7. A person found guilty of rape is liable to imprisonment for a term of not less than ten [10] years, which may be enhanced to life imprisonment if the circumstances of the case permits. The trial court considered the evidence led by the prosecution against the Appellant and found that the Complainant had indeed been raped by the Appellant. 8. In so finding, the trial court rendered itself as follows: “ The Complainant did not consent to the Sexual Act, she testified that the Accused had threatened her the Accused in his defence confirmed to have committed the offence but the Complainant had agreed to the Sexual Act which the court finds was not established in evidence. I find that the Accused having been accorded an opportunity to cross-examine the Complainant did not ask her of the issue that this line of defence was an afterthought.” 9. A reconsideration of the evidence by this court revealed that the Appellant did not admit committing the offence, but rather engaging in sexual intercourse with the Complainant. He stated in his defence that they were all drunk when they engaged in sex and this happened after he talked with the Complainant. He therefore implied that the Sexual Act was voluntary and consensual. 10. The offence being criminal in nature, no obligation was placed upon the Appellant to prove his innocence. On the Contrary, the obligation to prove the guilt of the Appellant lay squarely on the prosecution upon a standard of proof of beyond reasonable doubt. 11. In her evidence, the Complainant JM [PW1], indicated that she was heading home on the material date at 1:00pm when she met the Appellant and asked him to show her, her sister’s house. The two walked together and passed through an isolated maize plantation when the Appellant allegedly way laid her [Complainant] causing her to scream on sensing danger. He allegedly drew out a knife and she fell down while attempting to run away. He pressed her down even though she was weak due to her leukemia illness. 12. The Complainant indicated further that a person who attempted to come to her rescue was scared away by the Appellant after which the Appellant proceeded to rape her with his clothes on and after tearing the Complainant’s panties. She bled during the forceful sexual intercourse and when the Appellant was done he ran towards a river. She then picked herself up and reported the matter to the area chief before proceedings to Kabiyet Hospital where she was admitted for two [2] days. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4244/eng@2026-04-02 2

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13. Nicholas Maiyo [PW1] indicated that he saw the Appellant and the Complainant walking together heading to a nearby home. Shortly thereafter, he heard the Complainant scream and ran towards the direction of the screams at a shamba. The appellant who was his nephew told him [PW2] to go away from the scene. He left but returned later only to find the appellant allegedly raping the Complainant. He [Appellant] chased him away. 14. The witness [PW2] also indicated that he could not come to the aid of the Complainant because he did not know the nature of her relationship with the Appellant. He actually did not know whether the two had any sort of relationship. He said that the Complainant later appeared at the local market and alleged that the Appellant had raped her. The matter was reported to the police and the Appellant was arrested. 15. The Area Assistant Chief Edwin Kiptanui [PW3], indicated that a person called Eliud Murgor called him at 5:00pm on the material date and informed him that a woman had been raped. The chief then proceeded to a place called Teltet and found the woman. He interrogated the woman before referring her to the police. It was notable that the chief did not identify or make any attempt to identify the Complainant as being the offended woman. Nevertheless, it was assumed and it appeared as much that the Complainant was the said woman, a fact not disputed by the Appellant. 16. A Clinical Officer, Kimutai Bor[PW4], examined the Complainant and compiled the necessary police medical examination report [P3 Form] [P. Exhibit 1[b] which indicated that the Complainant was on her menstrual period and had no injuries to her genitalia, but had tenderness around the neck which was classified as harm. 17. Although there was no dispute that the Complainant and the appellant engaged in sexual intercourse on the material date whether lawfully or unlawfully the medical evidence by the Clinical Officer [PW4] seemingly overruled the element of force in the act contrary to what was portrayed by the Complainant in her evidence. It was clearly shown that the bleeding experienced by the Complainant was not as a result of a forceful or violent sexual intercourse, but as a result of the Complainants menses or menstrual cycle. 18. On whether there was a sort of relationship between the Appellant and the complainant, the Complainant was economical with the truth. On one hand, her evidence indicated that the Appellant was not a stranger and was previously known to her and on the other hand, the evidence indicated that the Appellant was a stranger to her and took advantage of her when she requested him to show her the place and house of her sister. 19. Basically, this was a case based on the credibility of the Complainant if there was to be a safe conviction of the Appellant by the trial court. The case was solely dependent on the word of the Complainant against that of the Appellant particularly with regard to the element of consent whose existence or absence in relation to the Complainant was the determinant factor in establishing and proving the offence of rape against the Appellant. 20. Apparently, the trial court believed the Complainant on account of the fact that the Appellant admitted the offence and that when he was given the opportunity to cross-examine the Complaint he did not raise the issue of consent. As it were, the Appellant was required to prove his innocence, a burden or obligation which could not in law be placed upon him regard being given to the circumstances of the case and the fact that the burden to prove his guilt beyond reasonable doubt was in law placed upon the prosecution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4244/eng@2026-04-02 3

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21. Although the trial court had the benefit of seeing the witnesses and make findings on their credibility, in this case the court did not make such findings and demonstrate why the testimony of the Complainant had to be believed as against that of the Appellant more so considering that the Complainant flip flopped on the question of consent and her actual relationship with the Appellant. She also lied when she implied that she bled during the impugned sexual act as a result of being violently and forcefully “penetrated” by the Appellant. 22. In essence, the complainant’s evidence was not reliable in the attempt by the Prosecution to prove that she never consented to sexual intercourse with the Appellant. The possibility that she actually did consent to the act was very high consideration being given to her tainted credibility. For all the factors and reasons foregoing this court does not think that the charge was proved beyond reasonable doubt against the Appellant. 23. Consequently, this appeal is merited and is hereby allowed. The appellant’s conviction by the trial court is hereby quashed and the ten year imprisonment sentence imposed upon him is set aside. The appellant be set at liberty forthwith unless otherwise lawfully held. Ordered accordingly. DATED AND DELIVERED THIS 2ND DAY OF APRIL, 2026 HON. J. R. KARANJAH, JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4244/eng@2026-04-02 4

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