Karanja Mwendia v Republic

asked her to board the motorcycle but she declined. Nasir slapped her twice and when she tried to scream for help he gagged her. She was forced to board the motorcycle. She was taken to Nasir’s house where the Appellant told her to be quiet not to be heard by Nasir’s mother. 7. In the house, Nasir tore her skirt and T-shirt. The Appellant removed her underwear and when she tried to scream, Nasir unleashed a panga and ordered her to be silent. Nasir raped her, and when he was through ordered her to sleep on the floor. The Appellant quipped that it appeared she was not satisfied, and also raped her. Then they all slept. 8. The following morning they raped her again. They then tied her up against the bed and left. They returned in the evening and raped her again. They went to deliberate outside. The victim got a chance to escape. She went to Gacheri’s house and told her what had transpired. They both went to report the matter at Kiutine Police Station. 9. On 18/6/2024 at about 9.00 am PW-3 was assigned the case for investigations. She interrogated the victim who stated that she was defiled by two persons. She recorded witness statements and visited the scene. She established that the victim was defiled. She referred the victim to the hospital for examination. 10. On 19/6/2024 the victim was examined by PW-2 at Nyambene Sub-County Hospital. The Clinical Officer found that she had no physical injuries. Her genitalia was okay with no visible injury. High vaginal swab examination detected no spermatozoa. The hymen was however absent but it was not freshly broken. He filled the P-3 form and the PRC Form. In his opinion, he observed that he did not find any indication of defilement. 11. The Appellant gave a sworn testimony in his defence and called one witness. He stated that he lives at Igembe Central and he was a boda boda rider. On the date of the alleged offence, he took the victim and Reuben to Kwa Njiru stage, and then returned them to Big 4 Restaurant. He saw the victim for the first time then. The two did not pay him as they alleged they had lost money. He reported them to P.C Wanjiru who entered the report in the OB and retained their phone. The following day they went to the Appellant for their phone. The Appellant told them it was at the police station. They then vowed to teach him a lesson. 12. Later Nasir and the Appellant were arrested. At the Police station he learnt they had raised an allegation of defilement. Nasir gave a bribe of 30,000/- and was released. The Appellant refused to give out money as he was innocent. He was placed behind bars. The complainant witnesses did not testify and he disputed her age as it was not clear whether she was 15 or 16 years old. 13. His witness, DW-2, raised and alibi saying he was with the accused who was working for him from 14/6/2024 till 18/6/2024. 14. The trial Court evaluated the evidence and found the Appellant guilty of the offence in the main Count. He was convicted of it and sentenced to serve 15 years imprisonment. 15. Dissatisfied with the said conviction, he appealed to this Court on the grounds that:1. Key prosecution witnesses were not called. 2. The charge sheet is defective. 3. The evidence was misapprehended and the wrong decision arrived at. 4. There are serious inconsistencies in the prosecution case, which confirms that the charges were framed up. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5309/eng@2026-04-27 2

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5. Clinical Officer’s evidence was doubtful and inconclusive and falls short of proving the charges levied against the Appellant, beyond reasonable doubt. 16. The Respondent opposed the appeal, of which was canvassed by way of written submissions. Both sides filed their respective submissions. 17. As a first appellate Court, I have a duty to subject the entire evidence on record to a fresh, exhaustive and independent re-evaluation and analysis, and to draw my own conclusions, while bearing in mind that I neither saw nor heard the witnesses testify, and must therefore give due allowance for that disadvantage. 18. The principle that the burden rests upon the prosecution to prove each and every element of a Criminal offence beyond reasonable doubt is a fundamental tenet of Criminal Law. 19. It is firmly entrenched in both statute and case law. Under Evidence Act, particularly Section 107 and 109. Here the legal burden of proof lies on the party who asserts a fact, thus in criminal cases, on the prosecution. 20. The presumption of innocence under Article 50(2) (a) of the Constitution of Kenya 2010, re-enforces the position. 21. The sole issue for determination is therefore, whether the prosecution established the offence against the Appellant beyond reasonable doubt, to warrant the arrived at conviction. 22. I will start from where it started; with the investigations. 23. The victim alleged that she was raped three times within two days by the Appellant herein and another disclosed as Nasir. The said Nasir appears to had played the greater role in the commission of the offence. He’s the one who asked her to board the motorcycle; slapped her twice when she refused to; Gagged her when she tried to scream; the offence took place in his house; he is the one who tore her skirt and T-shirt; when she tried to scream he unleashed a panga and ordered her to be silent; and raped her first. 24. The evidence of PW-3, the Investigating Officer shows that the complainant alleged to had been defiled by two persons. She does not disclose who the other suspect was, and why he was not arrested and charged alongside the Appellant herein. 25. She also stated that she visited the scene where she established that the complainant was defiled. She did not disclose what she found at the scene which made her draw that conclusion. She discloses nothing about the scene. 26. The questions which remains unanswered are:1. Was Nasir living alone in the said house? 2. How far was his house to that of his mother if they were not living in the same house? 3. Was his mother present during the incident? 4. Why was the said mother not questioned? 5. What happened to the clothes the complainant was in? 6. What was used to tie her against the bed, and was there evidence of the same at the scene? 7. Did the Investigating Officer collect anything from the house for examination in relation to the offence; and if not why? https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5309/eng@2026-04-27 3

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8. Was there effort to recover the panga allegedly used to threaten the victim? 9. What of the motorcycle used to ferry them to the scene; was it described by the victim; was there effort to trace it? 10. Did the Investigating Officer redo the journey from where the victim was allegedly picked from to the home to confirm plausibility of the victim’s allegation? 27. The Doctor’s/Clinical Officer’s report reveals no evidence of rape/defilement as opined by PW-2. He examined her on 19/6/2024, only 2 days after the last incident of the alleged defilement. The victim was allegedly raped by two men, 3 times. There was no evidence in support of the allegation on her genitalia. No tears, lacerations, or abrasions on the vagina, vulva and labia. There were no bruises or swellings. No noted redness or inflammation. High vaginal swab revealed no seminal fluid, spermatozoa and epithelial cells. Tenderness or pain on examination was also not revealed. 28. Though lack of injuries does not negate penetration, as penetration can be minimal and still satisfy the legal definition; the description given by the victim on how she was raped by the two does not suggest minimal penetration, with unlikelihood of revealing such evidence. 29. The Clinical Officer further disclosed that the hymen was broken or absent but it was not fresh. Though he did not categorically state how old it was, given that he was aware of the time of the alleged offence, such can be deduced to mean that it could not have been broken during the alleged incidents constituting the offence under Investigation. 30. One relevant witness by the name of Gacheri was not called as a witness. There’s even nothing to show she was made to record a statement. She was with the victim before the incident, and the victim reported to her immediately after the incident. She accompanied the victim to the police station to make the report. It’s hard to understand why she was not considered a relevant witness. 31. Her evidence missing, and that of the Clinical Officer falling short of buttressing the allegation, leaves the complainant’s evidence uncorroborated and at the risk of disbelief. 32. In Bukenya and others –vs- Uganda (1972) EA 549. The Court held that prosecution must make available all material witnesses necessary to establish the truth, even if their evidence may be inconsistent. Where a key witness is not called, and no sufficient explanation is given, the Court may infer that the evidence of that witness would have been adverse to the prosecution case. 33. On the charges preferred against the Appellant, it’s clear from the evidence of the victim that the Appellant was with another called Nasir. The particulars of the offence in the charge sheet also acknowledges that as it states “…….. jointly with another not before Court …..” 34. Section 10 of the Sexual Offences Act No. 3 of 2006, creates an offence where the act is committed in association with another or others. The offence is termed Gang Rape. The Section states as follow:“ Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5309/eng@2026-04-27 4

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35. Where more than one person is involved in commission of the offence of defilement and rape, the offences changes from that, in Law, to Gang rape. 36. To the said extent the Appellant was charged and convicted of the wrong offence. However, not every defect in a charge automatically invalidates a conviction. 37. Section 382 of the Criminal Procedure Code provides that a conviction will not be quashed merely because of an error or defect in the charge unless it has occasioned a failure of justice. 38. So, the key test is whether the defect prejudiced the Appellant. The offence of defilement and gang rape have similar ingredients, save for the number of assailants involved. The particulars of the offence disclosed that the Appellant was jointly with another not before Court. The change of offence from defilement to gang rape would not have availed him a defence which was not applicable to the offence of defilement. He therefore suffered no prejudice. As such the defect is curable under Section 382 of the Criminal Procedure Code. 39. The Appellant’s defence is that the actual dispute was about unpaid fare for a boda boda ride, by the complainant, and he reported her to PC Wanjiru. The said officer took the complainant’s phone and when she went for it from the Appellant, the Appellant told her it was at the Police Station. She vowed to teach him a lesson. 40. Two rarely utilized Sections of Criminal Procedure Code by the Prosecution are Sections 309 and 310 of the said Act. 309 provides that:“ If the accused person adduces evidence in his defence, introducing new matter which the Advocate for the prosecution could not by the exercise of reasonable diligence have foreseen, the Court may allow the Advocate for the prosecution to adduce evidence in reply to rebut it. 310, - “If the accused person, or any one of several accused persons, adduces any evidence, the Advocate for the Prosecution shall, subject to the provisions of Section 161, be entitled to reply.” 41. The provisions are crucial in that the accused person is under no legal obligation to disclose his defence beforehand. 42. Given the Appellant’s defence, on an issue which allegedly involved the police, the prosecutor should have applied for investigation of the defence with a view to calling rebuttal evidence or making a reply. Not having done so, left the Appellant’s defence insufficiently challenged, posing chances of truth. 43. Nevertheless, as was held in the case of Okethi Okale & Others –vs- Republic (1965)EA 555 (EACA). “The burden of proof is on the Prosecution throughout and never shifts to the accused ……. The weakness of the defence is not a substitute for the strength of the prosecution case.” 44. Section 124 of the Evidence Act does not lower the standard of proof in Criminal cases, which remains proof beyond reasonable doubt, but merely permit a conviction in Sexual Offences cases on the sole evidence of the complainant where the Court, having warned itself of the danger of relying on uncorroborated testimony, is satisfied that the complainant is truthful and records reasons for that belief, and it does not therefore dispense with the Prosecution’s burden or the constitutional safeguards protecting an accused person from wrongful conviction. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5309/eng@2026-04-27 5

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45. Having gone through the Judgment of the trial Court, it’s not evident that the Court warned itself of the danger of relying on uncorroborated testimony of the victim, was satisfied that she was truthful, and recorded the reasons for such belief. 45. On thorough evaluation of the entire evidence, I do find her testimony doubtful. The Prosecution did not establish the offence beyond reasonable doubt. In my view, the case was shoddily investigated and prosecuted. Given the seriousness of the alleged offence, the tasked officers should have done better. 46. The benefit of doubt goes to the accused person. I’ve accorded him that benefit. 47. The bottom line is that the Appeal is merited. Conviction and the sentence are quashed. 48. The Appellant is set free unless otherwise lawfully held. DATED AND DELIVERED AT MERU THIS 27TH DAY OF APRIL, 2026. S.M. GITHINJI JUDGE In the presence of:Appellant – present at Meru G. K. Prison. Mr. Irungu for the State. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5309/eng@2026-04-27 6

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