Kamau v Republic (Criminal Appeal E059 of 2025) [2026] KEHC 5433 (KLR) (Crim) (28 April 2026) (Judgment) Neutral citation: [2026] KEHC 5433 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYANDARUA CRIMINAL CRIMINAL APPEAL E059 OF 2025 KW KIARIE, J APRIL 28, 2026 BETWEEN JOSEPH KAHINGA KAMAU ................................................................ APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT (From the original conviction and sentence in S.O. Case No. E011 of 2025 of the Senior Principal Magistrate’s Court at Engineer by Hon. E. Wanjala –Senior Principal Magistrate) JUDGMENT 1. Joseph Kahinga Kamau, the appellant herein, was convicted of the offence of rape contrary to section 3(1) as read with section 3 (3) of the Sexual Offences Act No.3 of 2006. 2. The particulars of the offence were that on the 22nd day of April 2025 at [Particulars Withheld] in South Kinangop within Nyandarua County, he intentionally and unlawfully caused his penis to penetrate the vagina of M.W.N. without her consent. 3. The appellant was sentenced to serve twenty-five years' imprisonment. He was aggrieved and has appealed against both conviction and sentence. He was in person and raised grounds of appeal as follows: a. The learned trial magistrate erred in matters of law and fact as the evidence was insufficient to found a conviction. b. The learned trial magistrate erred in matters of law and fact as the sentence was against section 3 of the SOA No.3 of 2006 and also Article 50 of the Constitution of Kenya 2010. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5433/eng@2026-04-28 1
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c. The Learned trial magistrate erred in matters of law and fact as defence and mitigation were not assigned any weight. d. By merits of the case, law and emerging jurisprudence, a 25-year sentence is disproportionate, harsh, unfair and unconstitutional under the circumstances of the case. 4. The state opposed the appeal through M/s Odero Vena, the prosecution counsel. She argued that the offence had been proven to the required standard and that the sentence was appropriate. 5. 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. 6. The ingredients of the offence of rape are set out in section 3 of the Sexual Offences Act, which states as follows: A person commits the offence 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. 7. M.W.N. (PW1), the complainant, was sleeping at her house when she saw an intruder enter through a window that had been nailed shut. She shouted for help and begged the intruder not to kill her. When she switched on her lamp, she recognised the intruder as Kahinga, her friend’s son. The appellant then approached her bed and raped her. When he was done, he left. 8. The following day, she informed R.W. of her ordeal when she went to deliver some milk to her. The matter was reported to the police. The complainant was referred to the hospital for examination. 9. Eunice Njeri Kiiru (PW6), a community nurse at Heni Health Centre, testified that she examined an 82-year-old complainant on April 22, 2025. She observed a vaginal laceration and referred the patient to Engineer Hospital, suspecting rape. 10. Dr Newton Karanja, stationed at Engineer Hospital, examined the complainant on April 24, 2025. He observed a minor vaginal laceration and noted that she was bleeding. A high vaginal swab test detected spermatozoa. 11. The medical evidence corroborated the complainant’s contention that she was raped. 12. Joseph Kahinga Kamau, the appellant, denied the allegations as his defence. 13. The complainant was acquainted with the appellant before the incident, as he was the son of her longtime friend. The house was well-lit, and I am convinced that the appellant's conviction was supported by solid evidence. 14. The appellant contended that the sentence was excessive. An appellate court would interfere with the trial court's sentence only where there exists, to a sufficient extent, circumstances entitling it to vary the trial court's order. These circumstances were well illustrated in the case of Nillson vs Republic [1970] E.A. 599, as follows: The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5433/eng@2026-04-28 2
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that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence, and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in JAMES Vs. REX (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor. To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R vs SHERSHEWSITY (1912) C.CA 28 T.LR 364. 15. Section 3 (3) of the Sexual Offences Act provides the sentence for the offence of rape in the following terms: A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life. 16. The appellant received a sentence of twenty-five years' imprisonment. The trial magistrate noted that the complainant was an 82-year-old woman. The appellant exploited her age to commit rape. There is no evidence that the trial magistrate applied any incorrect principles or ignored important facts. I see no reason to alter the sentence. 17. The appeal lacks merit and is, therefore, dismissed. DELIVERED AND SIGNED AT NYANDARUA, THIS 28TH DAY OF APRIL 2026 KIARIE WAWERU KIARIE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5433/eng@2026-04-28 3
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