Wangui v Republic (Criminal Appeal E029 of 2025) [2026] KEHC 4684 (KLR) (Crim) (9 April 2026) (Judgment) Neutral citation: [2026] KEHC 4684 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYANDARUA CRIMINAL CRIMINAL APPEAL E029 OF 2025 KW KIARIE, J APRIL 9, 2026 BETWEEN JOSEPH WARUI WANGUI .................................................................... APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT (From the original conviction and sentence in S.O. Case No. E020 of 2024 of the Senior Principal Magistrate’s Court at Engineer by Hon. E. Wanjala –Principal Magistrate) JUDGMENT 1. Joseph Warui Wangui, the appellant herein, was convicted of the ofience of rape contrary to section 3(1) as read with section 3 (3) of the Sexual Offences Act No.3 of 2006. 2. He was also convicted of assault causing actual bodily harm contrary to section 251 of the Penal Code. 3. The particulars of the ofience were that on the 16th day of August 2022 within Nyandarua County, he intentionally and unlawfully caused his penis to penetrate the vagina of CWN without her consent. On the same day, at the same place, he unlawfully assaulted CWN, thereby occasioning her actual bodily harm. 4. The appellant received a ten-year imprisonment sentence. The specific count linked to this sentence was not mentioned. He was dissatisfied and appealed against both the conviction and the sentence. He raised grounds of appeal as follows: a. The learned trial magistrate erred in law and in fact by awarding a conviction on a prosecution case that was marred with uncorroborated evidence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4684/eng@2026-04-09 1
page 1 of 3
b. The learned trial magistrate erred in law and fact by not finding that the ingredients of the ofience were not conclusively proved beyond a reasonable doubt. c. The learned trial magistrate erred in law and fact by failing to find that the appellant’s defence was cogent and believable. 5. The respondent challenged the appeal via M/s Odera Vena. She contended that the conviction rested on ample evidence, although she found the sentence ambiguous. 6. This is a first appellate court. As expected, I have analysed and evaluated all the evidence adduced before the lower court. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs the Republic [1972] EA 32. 7. The ingredients of the ofience of rape are set out in section 3 of the Sexual Offences Act, which states as follows: A person commits the ofience 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; or (c) the consent is obtained by force or by means of threats or intimidation of any kind. 8. There is no doubt that the complainant was raped and was physically injured in the process. The only issue is whether the perpetrator was recognized. 9. CWN (PW1) testified that the incident happened between 10 p.m. and 11 p.m. She had just escorted Mama Wairimu when she was hit on the back of her neck in a bushy area and lost consciousness. She woke up in a forested area near a water dam, being carried on someone's shoulder. Her legs were behind the attacker, and her front was facing the man. The exact position was unclear, as it could mean she was either facing upward or downward. 10. Whichever way she was facing, even when circumstances are favourable for a positive recognition, it was not possible to recognize the person carrying her. It was at night, and the prosecution did not attempt to elicit evidence on the presence of any lighting and its intensity. 11. The complainant also testified that she identified the appellant by his voice. When voice recognition is used to identify an accused, caution must be exercised to prevent errors. The Court of Appeal highlighted this concern in Simeon Mbelle vs Republic [1982] IKAR 578. In relation to the identification by voice, one would obviously be necessary to ensure: 12. (a) That it was the accused person’s voice; (b) That the witness was familiar with it, and they recognized it and (c) That the conditions obtaining at the time it was made were such that there was no mistake in testifying to that which was said and who said it. The complainant said she was familiar with the voice of the appellant, for he frequents bars where she sells eggs. In my view, the data was insufficient to enable her to recognize a voice which was unfriendly at the time of the incident. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4684/eng@2026-04-09 2
page 2 of 3
13. When the complainant mentioned leaving the appellant at the bar, it was crucial to identify which bar it was and to call witnesses who could describe how the appellant was dressed and when he left. This could have helped to determine if he was the culprit. 14. Whenever a conviction is entered against an accused person on multiple counts, the trial court has a duty to specify the sentence for each count. In the present case, the learned trial magistrate erred by failing to specify which count her imposed sentence related to. 15. Based on the above review of the evidence, I conclude that the evidence supporting the perpetrator's identity is inadequate to justify a conviction. Consequently, the conviction is annulled, and the sentence is set aside. The appellant is to be released unless held for lawful other reasons. DELIVERED AND SIGNED AT NYANDARUA, THIS 9TH DAY OF APRIL 2026 KIARIE WAWERU KIARIE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4684/eng@2026-04-09 3
page 3 of 3