Rose Njoki Mbuthia v Republic

6. The complainant told the court that he lives with his siblings and that he sleeps in a house which cannot be locked from inside. That once he retires to bed a farm-hand called ‘Gichigo’ normally locks his house from outside. The complainant narrated to the court that on diverse dates between 15th March 2024 and 23rd March 2024 the appellant would come to the room where he slept. That she would open the door and enter his room using the light from her mobile phone as illumination. 7. The complainant went on to state that on each nocturnal visit the Appellant would remove all her clothes and climb into his bed. She would also pull down the complainant’s trousers and underpants. That the appellant would then massage the complainant’s penis causing it to erect. She would then insert his erect penis into her vagina and proceed to have sexual intercourse by grinding on his penis. The complainant stated that he did not consent to any of these nocturnal sex sessions. He states that he was unable to scream because each time the appellant would cover his mouth with her hand. 8. The complainant stated that each time the appellant raped him he would report the incident to his uncle who in turn would warn the appellant to stay away from the complainant. Finally the complainant and his uncle went and reported the incident at the chief’s office at Gathogo. Thereafter they made a report at Mukurwe-ini Police Station where the report was booked. 9. The complainant was then referred to Mukurwe-ini Hospital for examination where he underwent laboratory tests. On 5th April 2024 the appellant was arrested and later charged with the offence of Rape of an Imbecile. 10. PW2 WGG told the court that he resided in the Gathugu area where he was a farmer. PW2 stated that the complainant was his nephew being the son of the late brother. He stated that the complainant who is an orphan resides in the compound of his late parents where he has a house. That a farmhand also resides in the same property but in a different house. PW2 stated that the complainant was not physically disabled but stated that he was not mentally fit. 11. PW2 told the court that he also knew the appellant. That she was a fellow villager who was a widow and had no children. PW2 went on to testify that the complainant had reported to him that the appellant would come to his house during the night enter and rape him. PW2 said he warned the appellant against molesting the complainant as the two were related. That the appellant did not heed his warnings. 12. Finally PW2 went and reported the matter to their local chief who referred them to Mukurweini Police Station. Police investigated the matter and arrested the appellant who was later charged in court. 13. PW3 EMG told the court that he works as a farm-hand in the compound of the complainants late parents. PW3 told the court that on 21st March 2023 at around midnight he was asleep in his house. That he heard a knock on the complainant’s door. PW3 said he stepped outside and saw the appellant enter the complainant’s house. Later he saw the complainant leave the said house. PW3 testified that the same thing occurred on the night of 23rd March 2024. The matter was then reported to police. 14. PW4 Simon Mwaniki Kungu was a clinical officer who at the material time was attached to Mukurweini Hospital. He confirms that the complainant was attended to at their facility on 23rd March 2024. PW4 produces the P3 form dated 23rd March 2024 Pexb 2, the PRC form Pexb 3 as well as the complainant’s treatment notes Pexb 4. 15. PW5 PC Scholastica Kibuchi was the officer who on 12th April 2024 arrested the appellant from his home near Gathogo Polytechnic. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6946/eng@2026-05-22 2

page 2 of 8

16. PW6 Yvonne Njeri is a psychiatrist attached at Mukurwe-ini Hospital. She stated that she examined the complainant and prepared her medical report dated 22nd May 2024. The same was produced as an exhibit Pexb 8. 17. PW7 Corporal Samson Maina Wachira was the investigating officer. He visited the scene and took photographs which were produced as exhibits Pexb 6. 18. At the close of the prosecution case the appellant was found to have a case to answer and was placed on her defence. The appellant gave a sworn defence which she denied having raped the complainant at all. 19. On 28th November Hon. Bosibori, Senior Resident Magistrate delivered her judgment in which she convicted the appellant on the charge of Rape of an Imbecile and thereafter sentenced the Appellant to serve ten (10) years imprisonment. 20. Being aggrieved by both her conviction and sentence the Appellant filed this appeal which was premised upon the following grounds:“ 1. That the Learned Trial Magistrate erred in law and in fact in convicting the Accused for the offence of rape, yet the evidence tendered for instant the medical documents like the P3 form did not support at all the alleged offence of rape to warrant a conviction on the same. 2. That the learned Trial Magistrate erred in law and in fact in convicting the Accused for the offence of rape while there was no evidence to support the same against the appellant. 3. That the learned Trial Magistrate erred in law and in fact in convicting the Accused over testimonies from the prosecution witnesses that were full of contradictions and inconsistencies thus occasioning a miscarriage of justice. 4. That the Learned Trial Magistrate in law and in fact in convicting the Accused without taking into account the ingredients or elements on the offence of rape and thus arriving at a wrong conclusion of the law. 5. That the Learned Trial Magistrate erred in law and fact when she engaged in speculation and conjecture to the prejudice of the Appellant. 6. That the Learned Trial Magistrate erred in law and in fact by relying on contradictory evidence. 7. That the Learned Trial Magistrate erred in law and in fact in not only shifting the burden of proof, but also the instance of proof as well as lowering the standard of proof to the prejudice of the Appellant. 8. That the Learned Trial Magistrate erred in Law and in fact in not only shifting the burden of proof, but also the instance of proof as well as lowering the standard of proof to the prejudice of the Appellant. 9. That the Learned Trial Magistrate erred in law and in fact by failing to consider the defense and mitigation of the Appellant. 10. That the learned Magistrate erred in both law and facts by not considering there was an existing/or possible grudge between the Complainant’s uncle and the Accused thus occasioning a miscarriage of justice. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6946/eng@2026-05-22 3

page 3 of 8

21. 11. That the learned Magistrate erred in Law and in fact by failing to substitute the charges herein properly and convicting the appellant for an offense for which she was not charged as seen in the charge sheet thus occasioning a miscarriage of justice. 12. That the learned Magistrate erred in Law and in fact by convicting the appellant on offense which does not exist in law thus occasioning a miscarriage of justice. 13. That the learned Magistrate erred in Law and in fact by failing to appreciate that the offences were not proved beyond reasonable doubt. 14. That, the learned trial Magistrate erred in both law and facts by failing to consider that there were gaps and discrepancies regarding the evidence tendered by the prosecution.” The appeal was canvassed by way of written submissions. Counsel for the Appellant filed the written submissions dated 28th November 2025 whilst the Respondents [ODPP] relied upon their written submissions dated 3rd March 2026 in which they conceded to the appeal and applied that the case be retried in the Lower Court. Analysis and Determination 22. I have carefully considered the appeal before this court, the record of the trial before the Lower Court as well as the written submissions filed by both parties. 23. This is a first appeal in which the duty of the Court is to re-examine and re-analyse the evidence adduced before the lower court and to draw its own conclusions on the same. In the case of Okeno -vs- Republic [1972] EA 32 the court set out the duties of the appellate court as follows:“ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic (1957) EA 336 and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to support the lower court’s finding and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post [1958] EA 424.” (See also Kiilu & Another v Republic [2005] KLR 174).” 24. Similarly in the case of David Njuguna Wairimu -vs- Republic [2010] eKLR the Court of Appeal stated as follows:“ The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6946/eng@2026-05-22 4

page 4 of 8

considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.” 25. The Appellant faced a charge of Rape of an Imbecile contrary to Section 146 of the Penal Code Cap 63, Laws of Kenya. The learned trial magistrate proceeded to convict the appellant of the offence of Rape of an Imbecile. This charge faces a technical knockout because as conceded by the ODPP on the date when the appellant was arraigned in court and charged being 22nd April 2024 Section 146 of the Penal Code no longer existed. That particular offence had on 11th December 2023 been amended to read “Defilement of a person suffering from mental illness.” The term imbecile was removed from the statutes as the same was deemed offensive. 26. In the circumstances the charge was fatally defective. In the case of Christopher Auka -vs- Republic [2019] eKLR a case on all fours with the present case the court stated that:“ 13. The first issue raised in the petition is on the offence charged. The appellant faced a charge of rape of an imbecile contrary to section 146 of the Penal Code. He argues that there is not such offence under the Penal Code… 14. The marginal notes to section 146 of the Penal Code describe the offence created in that section as “defilement of idiots or imbeciles.” The body of the provision indicates that the conduct targeted is “unlawful carnal connection with the victim” Clearly, the offence created under section 146 is not that of rape, and, according to the marginal notes, it is defilement. I therefore agree with the appellant that section 146 of the Penal Code does not create the offence of rape, and therefore the charge was erroneous.” [Own emphasis] 27. The conviction of the Appellant by the trial court on a non-existent charge was a fatal flaw which renders the entire proceedings null and void. 28. Notwithstanding the above finding and for purposes of completeness I will proceed to consider the evidence on record. 29. The charge indicated that the complainant was an Imbecile or in correct terminology a person suffering from a mental illness. Therefore mental health of the complainant was a critical aspect of the charge. 30. PW6 was the psychiatrist who examined the complainant. She produced as an exhibit her report dated 22nd May 2024. Upon examination the complainant was found to be “well-groomed, calm, co-operative and maintained eye contact.” Further the doctor found that the complainant possessed logical thought process and was goal-oriented. No perceptual disturbances were noted. Attention and concentration were good. 31. The doctor who was a professional in the area of psychiatry found that the mental status of the complainant was ‘stable’. Further the doctor opined that the complainant was able to follow court proceedings. Most pertinently PW6 categorically stated that “ He [the complainant] is not an Imbecile or an idiot.” 32. In short the psychiatrist a witness called by the prosecution confirmed to the court that the complainant did not suffer from any mental illness. This was quite evident from a consideration of the record. The complainant gave a lengthy cogent narration of events and he answered all questions put to him in cross-examination. The complainant did not exhibit any signs of mental illness in court. PW6 was a prosecution witness whose evidence contradicted a key element of the charge. This was https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6946/eng@2026-05-22 5

page 5 of 8

expert medical evidence which was not controverted at all. The evidence of PW6 deals a fatal blow to the prosecution case. 33. In her judgment at Page 34 the trial magistrate fully concurred with the findings of the psychiatrist. The trial Magistrate stated as follows:“ I fully concur with the above observations as the complainant had a very good demeanour and recollection of all the seven incidences herein. He would indicate the date and time for each and he would describe the clothes that the parties wore in details. He would also vividly describe each incident despite several days having elapsed after the incidents. He maintained the same version of events to his kin, caregiver, the medics and made him a very incredible witness. He is a vulnerable person but he did not need to be declared so as he needed not much assistance from the court save for Kikuyu interpretation where he did not understand questions in Kiswahili…..” 34. The trial magistrate went on to observe the complainant readily answered all the questions put to him. It is very surprising that having made all the above observations and in the face of the report from the psychiatrist the trial court would proceed to return a guilty verdict. The conviction flies in the face of available evidence as well as the observations of the Court itself. The trial court obviously erred in this regard. 35. Let us now consider whether the offence of rape was in any event proved. Rape is defined by Section 3 of the Sexual offences Act in the following terms:“ A person commits the offence of Rape if a. he or she intentionally and unlawfully commits an act which cause 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.” 36. A key element of the offence of rape would be the act of penetration. The complainant stated that whenever the appellant came to his house, she would massage his penis causing it to erect and then insert the erect penis into her vagina. Apart from the complainants word there is no evidence that this is what actually occurred. As is common in sexual offences there was no eye witness to the said incidence of rape. 37. The complainant was taken for medical assessment but unlike examination of female where penetration can be proved by a broken hymen, bruises on the genitals etc in the case of a man a medical examination would not be able to corroborate the allegation that penetration had occurred. 38. PW4 the clinical officer produced the P3 form as well as the PRC form for the complainant. Pexb 2 and Pexb 3. PW4 stated that no abnormalities were detected from the various tests which were conducted on the complainant. In his evidence PW4 stated that “ A man can be raped. There was no confirmation, no direct confirmation of rape………” Therefore there was no medical evidence to corroborate the complainants claim that sexual activity had taken place. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6946/eng@2026-05-22 6

page 6 of 8

39. The second key element of a charge of rape would be the lack of consent of the victim. The complainant stated that he never at any time consented to having sexual relations with the appellant. The first question that would arise is why the complainant allowed this to go on for so long before any decisive action was taken. If the complainant was truly aggrieved by the actions of the appellant then he would have reported to police after very first incident. 40. Secondly it would appear that the complainant took no steps to fight off the appellant or to run away. The complainant was a man and surely would have tried to fight off his assailant. There is no evidnce of bruises and/or injuries on the bodies of either the complainant or the appellant. There was no evidence of struggle or disturbance in the complainant’s house. It seems that the complainant just lay there and allowed the appellant to have her way with him. 41. PW4 the clinical officer indicates that no wounds or injuries were noted on the complainant’s body or around his genitals. The complainant it seems did not fight or struggle with the appellant to prevent the alleged assault. Even after the appellant left the complainant did not raise the alarm immediately as would be expected if he did not consent. All in all the complainants actions do not lead to the inference that he did not consent to the activities of the appellant. 42. Finally in order to prove the charge of rape there must be clear evidence of identification. The incidences narrated by the complainant all happened at night inside his house. No doubt it was dark. The complainant did not mention having switched on lights in his room. Instead the complainant says that he was able to see the appellant using the light from the appellant’s mobile phone which he says the appellant would place on the table each time. 43. The complainant did not describe the intensity of that light, how far the light illuminated and how long the light remained on. In his evidence the complainant, says that the appellant had a smart phone whose light lit up the entire house. I do not find it likely that the light from a mobile phone would light up an entire room and would remain on for several minutes unless the owner was holding the phone to keep the light on. The condition in a dark room did not favour a positive identification. The appellant was a neighbour to the complainant. The complainant did not mention any words that the appellant may have spoken which may have enabled him to recognize her voice. 44. PW3 EG was a farmhand who slept in a house next to the complainant’s house. He stated that on the night in question he heard someone knock on the complainant’s door. That later he saw the appellant step out of the complainant’s house. However in his evidence PW3 states that ‘I only saw her back and not the face.” PW3 goes on to say “ I saw her back for about one minute.” Not only would it be very difficult to see and identify a person from the back the fact that it was night time would only make identification more difficult. 45. PW3 claims that he was able to identify the appellant from her red cap a marvin which she often wore”. Was the appellant the only person in the village who wore a red marvin? A red marvin is a common item or clothing and cannot be a positive identifier. 46. PW3 in his evidence talks of light from a security light outside the complainant’s house which he claims enabled him to see the appellant strangely enough the complainant himself made no mention of any security light outside his house. 47. All in all I find that the evidence on identification does not pass muster. I am not satisfied that given the prevailing circumstances the complainant and PW3 were able to positively identify the appellant. 48. In conceding to this appeal the ODPP prayed that the case be remitted to the magistrates court for retrial. The Appellant was sentenced in November 2024 to a period of ten (10) years. She has already https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6946/eng@2026-05-22 7

page 7 of 8

served close to two (2) years on a conviction which ought not to have been rendered as the charge was defective. To subject the appellant to a re-trial would only serve to further prejudice her. 49. Further from my analysis of the evidence I find that the evidence adduced was not sufficient to sustain a charge of Rape. I am therefore not inclined to order a re-trial. 50. In conclusion this appeal succeeds. The conviction of the Appellant is quashed and her sentence is set aside. The appellant is to be set at liberty forthwith unless she is otherwise lawfully held. DATED IN NYERI THIS 22ND DAY OF MAY 2026. ………………… MAUREEN A. ODERO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6946/eng@2026-05-22 8

page 8 of 8