John Mwangi Kamau v Republic

g. Failing to consider the absence of an identification parade and failure to consider that no description was properly recorded immediately after the incident. h. Failing to find that penetration was not proved to the required standard. i. Failing to properly consider the Appellant’s defence, which the Appellant claims was plausible. 3. The Appellant prays that the conviction and sentence be quashed and set aside, and that he be acquitted. 4. The Respondent opposed the appeal and filed Grounds of Opposition and submissions stating that: - 5. a. The prosecution proved its case beyond reasonable doubt; b. The learned trial magistrate reached the correct decision; c. The complainant’s evidence was properly analyzed and relied upon; d. The investigations were properly conducted and the file was forwarded to the ODPP for appropriate action; e. The witnesses were credible, consistent, and corroborative; f. Section 124 of the Evidence Act was properly applied; g. The complainant identified the Appellant, and an identification parade was unnecessary given the circumstances; h. Medical documents corroborated the complainant’s evidence on the sexual assault; i. The Appellant’s defence was duly considered but did not raise reasonable doubt. The appeal was canvassed by way of written submissions which I have considered. Duty of the first appellant court 6. The duty of the first appellate court is to reconsider and re-analyse the evidence presented before the trial court with a view to arriving at its own independent findings while bearing in mind the fact that it neither heard nor saw the witnesses testify. (See Pandya vs. Republic [1957] E.A 336). 7. I will therefore turn to consider the evidence presented before the trial court. Summary of the Evidence 8. The Prosecution called a total of 3 witnesses. A summary of their evidence was as follows: a. PW1, the Complainant testified that she returned home from work late at about 11pm on the material day and encountered difficulty accessing her residence as her persistent knocks at the gate did not yield any response. She was shortly thereafter accosted by a man she did not previously know, who assaulted and raped her. PW1 testified that she was later assisted by watchmen/security guards who were on duty in the area after they found her crying in distress. She later reported the matter to the police. She stated that the watchmen pursued and arrested a suspect and escorted him to the police post where she made a report. PW1 further stated that she identified the suspect by his appearance and clothing, including distinctive clothing and footwear. Photographs of the Appellant were produced in evidence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4818/eng@2026-04-09 2

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b. PW2, the Investigating Officer, testified that she received the rape report, collected the suspect from the police post, recorded statements, visited the scene, and produced exhibits including photographs, inventory records, and medical documents. PW2 confirmed that the complainant identified the suspect and that he was arrested shortly after the incident. c. PW3, the Clinical Officer testified that the complainant was examined and medical documents were filled, including a P3 Form, a Post-Rape Care (PRC) Form and treatment notes which she produced as exhibits. PW3 stated that the complainant had complaints of pain and injuries consistent with assault and sexual assault. 9. When placed on his defence, the Appellant elected to give an unsworn testimony and did not call any witnesses. He denied committing the ofience and stated that he was attacked by members of the public and later taken to the police station where he was charged with the ofience of rape. The trial court’s findings 10. The trial court found that the complainant’s evidence was credible, consistent and supported by surrounding circumstances. The court noted that the Appellant was sufficiently identified as the perpetrator, including through his arrest shortly after the incident and identification based on his appearance and clothing. The court further noted that the medical and documentary evidence supported the occurrence of the ofience and that the Appellant’s defence did not displace the prosecution evidence. 11. As I have already stated in this judgment, the trial court held that the prosecution had proved its case beyond reasonable doubt, and convicted the accused of the ofience of rape under section 3 of the Sexual Offences Act. 12. The appeal was canvassed by way of written submissions which I have considered. Appellant’s Submissions 13. The Appellant reiterated the grounds listed in his Petition of Appeal and submitted that the conviction was unsafe due to insufficient evidence and procedural shortcomings. He submitted that his identification was unreliable because the incident occurred at night and in a poorly lit environment. He added that the complainant had no means of tracking time as she had no phone or watch thereby raising doubt on the accuracy of her evidence. 14. It was the Appellant’s case was that the possibility that he was a victim of mistaken identity was not excluded since no identification parade was conducted. 15. The Appellant relied on the decision in R vs. Turnbull [1976] 3 All ER 549 for caution in visual identification evidence, and Njihia vs. Republic [1986] KLR on the value of an identification parade. 16. On failure to call crucial witnesses, the Appellant submitted that the three watchmen/security guards who allegedly assisted the complainant and arrested him were crucial witnesses, yet none was called to testify. He cited Bukenya vs. Uganda [1972] EA 549, arguing that failure to call vital witnesses entitled the court to draw an adverse inference. 17. On whether the prosecution proved the case beyond reasonable doubt, the Appellant submitted that although medical evidence confirmed that the complainant was assaulted, it did not conclusively link https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4818/eng@2026-04-09 3

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him to the ofience as no DNA/forensic evidence was adduced. He relied on the decision in the case of Juma Ngodia vs. Republic (1982–88) 1 KAR 454, for the argument that medical evidence alone, without a clear link to the accused, cannot ground a conviction. 18. The Appellant faulted the trial magistrate for convicting him without critically analysing weaknesses in prosecution evidence and for failing to consider the defence. He cited the case of Mary Wanjiku Gichira vs. Republic (Criminal Appeal No. 17 of 1998) for the principle that suspicion however strong cannot be the basis of conviction. Respondent’s Submissions 19. The Respondent opposed the appeal and maintained that the prosecution proved its case beyond reasonable doubt, that the complainant identified the Appellant, that an identification parade was not necessary, that section 124 was complied with, and that medical evidence corroborated the complainant’s testimony. 20. The Respondent cited authorities to support reliance on single witness testimony where credible evidence is adduced and the ingredients of the ofience are proved. 21. The Respondent urged the Court to dismiss the appeal. Issues for Determination 22. Having considered the Petition of Appeal, the record and the rival submissions, I find that the issues for determination are: a. Whether the ingredients of the ofience were proved beyond reasonable doubt . b. Whether the Appellant was positively and reliably identified as the perpetrator. c. Whether failure to conduct an identification parade rendered the conviction unsafe. d. Whether failure to call the watchmen/security guards was fatal to the prosecution case. e. Whether the trial court properly applied section 124 of the Evidence Act and properly considered the defence. f. Whether the conviction and sentence ought to be interfered with. Analysis and Determination Ingredients of the ofience 23. The burden of proof in criminal cases rests with the prosecution and remains constant throughout. The standard is proof beyond reasonable doubt. 24. From the evidence presented by the Prosecution witnesses, it is not in doubt that the complainant was raped on the night in question. I note that the complainant gave a compelling and consistent testimony on how she was sexually assaulted on the night in question. He testimony was supported by the medical evidence tendered whose findings I find to be consistent with sexual assault. 25. This Court accepts that the evidence on record points to the occurrence of an ofience of rape. However, the core issue is not merely whether an ofience occurred, but whether it was proved beyond reasonable doubt that it was the Appellant who committed it. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4818/eng@2026-04-09 4

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Positive Identification of the Appellant. 26. The conviction herein turned substantially on the evidence of a single identifying witness, PW1. 27. The law is settled that where identification is made under difficult circumstances, particularly at night, the Court must exercise the greatest caution before arriving at a conviction. This is the position that was taken in the oft-cited case of R vs. Turnbull (supra) where the Court emphasized the need for caution where identification is difficult or where lighting is inadequate, to avoid the possibility of mistaken identity. 28. Similarly, in Wamunga vs. Republic [1989] KLR 424, the Court of Appeal warned that evidence of visual identification can cause miscarriage of justice if not carefully tested. 29. In the present case, I note that the incident occurred at night and the Complainant stated that she did not know the assailant. The Complainant testified as follows: “ Accused appeared, began to assault me. I asked him why he was assaulting me. He did not respond but continued beating me. He dragged me to a nearby stall. The place was dark. He removed my clothes, inserted his penis into my vagina. I struggled with him to stop.” 30. On cross examination, the Complainant stated that: “ I saw you in light as you attacked and beat me before you dragged me to a dark place.” 31. From the above extracts of the Complainant’s testimony. It is clear that the incident occurred in a dark location with limited or no lighting. There was no evidence of prolonged interaction or circumstances clearly establishing unmistakable recognition. No identification parade was conducted to enable the Complainant single out and pick the Appellant as her assailant on the fateful night. 32. My finding is that the identification was made in circumstances that leave open the possibility of error. I also note that the evidence of the investigating officer (PW2) was not that of an eyewitness to the incident. PW2 largely relied on what had been reported to her and on the chain of events thereafter. 33. I further note that the trial court did not warn itself of the danger of convicting the Appellant based on the sole identification evidence of the Complainant when the said identification was done under very difficult circumstances. It is instructive to note that while the Complainant claimed that there was light that enabled her to see the assailant before he dragged her to a dark place, there was no indication on the nature of the light or its strength/intensity and the whether it was sufficient to enable proper identification. 34. This Court therefore finds that the identification evidence was not free from the possibility of error. Identification Parade 35. The Complainant testified that she did not know the Appellant prior to the incident. This means that the Appellant was a stranger to her. It is trite that where identification is by a single witness, and particularly where the suspect is a stranger, an identification parade is often crucial to test the credibility and reliability of the identification. In Njihia vs. Republic (supra) the Court held that an identification parade, if properly conducted, plays a crucial role in confirming the truthfulness of a witness’s identification and that without such independent confirmation, it may be difficult to ascertain truthfulness. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4818/eng@2026-04-09 5

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36. In this case, I note that despite the fact that the Complainant did not know the Appellant before the material date and despite the Appellant’s alleged arrest soon after the incident, no identification parade was conducted. The prosecution ofiered no explanation as to why this was not done. 37. My finding is that given the difficult circumstances of identification, the omission to conduct an identification parade was material and weakened the probative value of the identification evidence. Crucial Witnesses 38. The evidence on record repeatedly mentioned that some unnamed watchmen/security guards allegedly found the complainant crying and that she gave them a description of her assailant whom they pursued, arrested and escorted to the police post. It was also alleged that the said guards/watchmen also saw the suspect hovering around the scene of crime for some time just before the Complainant informed them that he had assaulted her. The Complainant testified as follows: “ I was crying. The watchmen from the area, 3 of them heard me sobbing. They came to where I was. Inquired what had happened. I explained the same to them and also described accused here to them, his physique and dressing including his torn shoe. They had seen him pass. They followed him and found him in VIP Hotel. He was arrested by them and taken to the nearest police post.” 39. The above extract of the Complainant’s testimony shows that at least three (3) witnesses found her in distress and allegedly assisted in tracing the assailant after she gave them his description. These witnesses were central to the prosecution narrative as their evidence would have been important in confirming the description that was given, whether the suspect they arrested matched the description, where and how he was arrested and whether the arrest was based on credible information or mere suspicion. 40. It is however unfortunate that none of the three witnesses were called to testify and no explanation was given for the failure to avail them in court. This court notes that this could have been an open and shut case had the police and the prosecution done the right thing by availing at least one of the watchmen to corroborate the evidence on identification. It is however regrettable that this was not done thereby leaving the court with a half-baked case that cannot meet the test of proof beyond reasonable doubt. 41. In Bukenya vs. Uganda [1972] EA 549, the Court held that the prosecution has a duty to avail witnesses necessary to establish the truth, and where such witnesses are withheld, the court may draw an inference that their evidence would have been adverse to the prosecution’s case. 42. My take is that while it is true under section 143 of the Evidence Act that no particular number of witnesses is required to prove a fact, that principle does not excuse failure to call material witnesses whose evidence would resolve key contested issues, particularly the identity of a suspect where such identification was done under difficult circumstances and more so, in the absence of an identification parade as was the position in this case. 43. In my considered view, the failure to call the watchmen/security guards left a serious gap in the prosecution case that warranted an adverse inference. Section 124 of the Evidence Act 44. Section 124 of the Evidence Act permits conviction on the evidence of the complainant alone in sexual ofience cases provided the Court believes the complainant and records reasons for that belief. However, the said section does not diminish the constitutional requirement that the prosecution must prove its case beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4818/eng@2026-04-09 6

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45. Where the evidence of identification remains doubtful, the Court cannot cure that defect merely by invoking section 124. 46. Accordingly, while the trial court may have believed the complainant, this Court finds that the circumstances of this case required stronger safeguards and corroboration, especially where identity was disputed. 47. It is trite that a conviction must not be based on suspicion, conjecture or unresolved doubt. In Mary Wanjiku Gichira vs. Republic (Criminal Appeal No. 17 of 1998), the court emphasized that suspicion, however strong, cannot provide a basis for inferring guilt. 48. Upon fresh evaluation, this Court finds that the prosecution did not discharge the burden of proving, beyond reasonable doubt, that the Appellant was the perpetrator of the ofience, given the unresolved identification weaknesses and absence of vital witnesses. Conclusion 49. In the final analysis, while the Court finds that there was evidence showing that an ofience of rape occurred, the identification of the Appellant was not free from the possibility of mistake, given the night conditions and the circumstances that were described. I have already found that the failure to conduct an identification parade coupled with the failure to call crucial witnesses weakened the prosecution case and left glaring gaps that this court cannot ignore. 50. In the end, I find that the prosecution did not prove the case against the Appellant beyond reasonable doubt. 51. Accordingly, this Court makes the following orders: 52. a. The appeal is allowed. b. The conviction is hereby quashed. c. The sentence is hereby set aside. d. The Appellant shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIVASHA THIS 9TH DAY OF APRIL, 2026. HON. W. A. OKWANY JUDGE 9/04/2026 For Appellant …. Miss Koina for the state Court Assistant Karani File closed https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4818/eng@2026-04-09 7

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