Alex Muthuri Peter v Republic

When they returned they found the victim lying on the floor. He was naked and was bleeding from the anus. He also had blood stains on the left knee and right elbow. There was no one else in the house. 5. The following morning of 11/4/2022 at 7.47 am, they reported the matter at (Particulars withheld) Police Post. PW-2 received the report. Alex Muthuri Peter Alias Kaindi, was disclosed as the culprit. The report was booked and they were referred to Kanyakine Sub-County hospital for examination. 6. The victim was examined on the very same day by PW-4 who noted he was aged 19 years old and was mentally challenged. He had bruises, lacerations and tender swellings on the forehead. There were also bruises and laceration on the left forearm, and both knees. There was a cut wound on left toe. The injuries could have been caused by a blunt object. 7. On examination of the anal orifice, he noted there were bruises, tenderness and mild bleeding. His penis and testes were tender. The anal region had a tear at 12.00 O’clock (the upper part at the center). It revealed evidence of forcible entry to the anal canal. The degree of injury was classified as grievous harm. The P-3 form was thus filled and was produced in Court as P-exhibit 2. 8. The Appellant had gone underground after the incident. PW-3 searched for him for a long time but in vain. However, a report was received later that he had been arrested and was held at Uruku Prison, booked under the name of Patrick Kithinji. On 26/5/2022 PW-3 proceeded to Uruku Prison where he traced him. He knew him as he was living next to the Police Post. PW-2 was also able to identify him. He was then charged with the ofiences carried in the charge sheet. 9. The Appellant gave unsworn testimony in his defence and called no other witness. He stated that he is Patrick Githinji Peter and not Alex Muthuri Peter. He alleged that the evidence adduced against him was false. On the material date he had planted tomatoes in his farm and proceeded home at 8.00 Pm. He never left the house the entire night and was not aware of what transpired. He did not commit the alleged ofiences. He has a wife and children and could not commit such an ofience. The case was framed against him. 10. The trial Court evaluated the evidence and found the Appellant guilty of the ofience in Count one. He was convicted of it and sentenced to serve 20 years imprisonment. 11. Dissatisfied with the said conviction and sentence, he appealed to this Court on the following grounds:1. That the charge sheet is defective. 2. That the victim was not called in Court for the Court to satisfy itself that he was incapable of testifying. 3. The procedure under Section 31 and 32 of the Sexual Offences Act was not complied with. 4. The sentence is harsh and excessive. 5. The Appellant’s defence was not weighed. 12. The Respondent opposed the appeal and it was canvassed by way of Written Submissions. 13. As the first appellate Court I have reconsidered and re-evaluated the charges, evidence adduced by one prosecution witnesses, Appellant’s defence, Judgment of the Lower Court, grounds of the Appeal and submissions by both sides; with a view of drawing my own independent conclusions. 14. Under the Sexual Offences Act No. 3 of 2006, the ofience of rape is gender-neutral. A male adult can be a victim of rape, and the legal ingredients remain the same regardless of the victim’s sex. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4962/eng@2026-04-16 2

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15. To sustain a conviction, the prosecution must prove the following ingredients beyond reasonable doubt: a. Intentional and unlawful act. Here the accused must have intentionally and unlawfully committed the act. This excludes acts which may be justified by law like medical procedures. Under Section 43 (1) of Sexual Offences Act; if it is committed, a. In any coercive circumstances; b. Under false pretences or by fraudulent means; or c. In respect of a person who’s incapable of appreciating the nature of an act which causes the ofience. b. Penetration. There must be penetration, either partial or complete, which involves insertion of genital organs of the suspect into genital organs of the victim, which include anus. c. Lack of consent by the victim. There should be absence of free consent. Here the victim must have the capacity to consent and such consent should not be obtained through force, threats, intimidation or even stupification. d. Identification or recognition of the suspect as the real culprit. 16. On the first issue, the particulars of the charge sheet discloses that accused intentionally and unlawfully committed the said ofience. The injuries sustained by the victim as were revealed by PW-1, PW-2 and PW-4 could not be justified in any manner in law. The victim given his mental status, was incapable of appreciating the nature of the act which caused the ofience. It therefore goes without saying that the act was committed intentionally and unlawfully. 17. On the issue of penetration, the evidence of PW-4 is crucial. She examined the victim hours after the alleged incident. She noted on examination of his anal orifice, that there were bruises, tenderness and mild bleeding. On the anal region, there was tear at 12.00 O’clock (the upper part at the center). She was of the opinion that the tear and mild bleeding is evidence of forcible entry to the anal canal. The said evidence was not challenged by the defence and it simply shows that the victim anus was penetrated. What is not clear, given that the victim ofiered no evidence, is of the object or organ that did the penetration. For the ofience to subsist the penetration should be by genital organs. If it is by any other organ or object, then the ofience is Sexual Assault under Section 5(1) of the Sexual Offences Act No. 3 of 2006. The question here is whether there is direct or circumstantial evidence which establishes the organ or object that caused penetration to the victim. The evidence of PW-4 shows spermatozoa was not traced. There is no evidence that the culprit undressed during the incident or used his genital organs to penetrate the victim. Given the foregoing disturbing scenario, where it’s clear that an ofience was committed, and a serious one against the victim, the Court would be justified in the interest of justice to assume common course of natural events in relation to human conduct as what really took place, as inferred by provisions of Section 16 of the Evidence Act, Cap 80. In doing so, I find justification in holding that the penetration was by genital organs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4962/eng@2026-04-16 3

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18. The victim in this case as was revealed by his mother and Cousin was mentally challenged and incapable of expressing himself. PW-4 who examined him, though not mentally, was also of the said position. As such he was incapable of giving consent. The injuries he sustained on the forehead, elbow, knees and toe, shows it was done forcefully and most likely than not, he physically resisted. The evidence leaves no doubt that the victim was in want of capacity to consent to the act, and did not consent. 19. As regard identification of the culprit, he’s a neighbour and a Cousin to PW-1. PW-1 saw him leaving the house in which the incident took place. Though at night he had a torch of which beam he shone on him. He even questioned him though he did not respond. The name was disclosed immediately to PW-2, by PW-1, of him being the culprit. The same happened the following morning when the matter was reported to the police. PW-1 on cross examination even described the way the Appellant was dressed which shows that he was able to see him clearly, and recognized him. PW-1, PW-2 and PW-4 disclosed that after the incident the Appellant went underground which as well points to him as the real culprit. The evidence when weighed together shows that he was properly recognized and he’s the real culprit. 20. In his defence he said he was with his wife and children on the material night and did not leave the house. He did not call them to support the allegation. The defence is of mere denial and was rightly dismissed by the trial Court. 21. The Appellant raped a mentally challenged young male adult, aged 19 years, in a brutal manner, where he sufiered various injuries. There’s nothing on record to show remorse on his part for the ofience. He was not a first ofiender. He deserved the 20 years imprisonment, given the circumstances. 22. The upshot is that the Appeal is in want of merit and is hereby dismissed. DATED AND DELIVERED AT MERU THIS 16TH DAY OF APRIL, 2026. S.M. GITHINJI- JUDGE 16/4/2026 In the presence of:Appellant – Present at Meru G. K. Prison Ms. Adhi – For the State https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4962/eng@2026-04-16 4

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