Julius Waithaka Kibugi v Republic

4. 3. That the learned trial magistrate erred on both law and fact by basing my conviction sorely on the evidence of a single witness whose evidence was not credible. 4. That the learned trial magistrate erred in law and facts by not considering the time he had spent in remand prior to conviction. The Appeal was heard through written submissions. Appellant’s Submissions. 5. On the ingredient of penetration, the Appellant challenges the trial court’s reliance on medical findings. He argues that a broken hymen is not definitive proof of sexual intercourse, citing the Canadian decision in Queen vs Manuel Vincent Quintanila (1999) AB QB 769 to illustrate that natural tearing or physical activity can produce similar results. 6. Regarding the issue of consent, the Appellant maintains that any sexual encounter was consensual. He points to the record where the complainant (PW1) stated during cross-examination that “he begged me over and over again till I agreed,” arguing this demonstrates her capacity to choose. To buttress this, he relies on Republic v Oyier (2008)eKLR. 7. He further faults the trial magistrate for failing to conduct a voire dire to ascertain the complainant's mental status despite allegations of her being mentally challenged. 8. Finally, on the matter of sentence, the Appellant submits that the ten-year imprisonment was manifestly high. He invokes the Supreme Court’s decision in the Muruatetu case, which he argues unshackled the hands of the court to exercise discretion in sentencing. He invites this court to be guided by the decision in Joshua Gichuki Mwangi V Republic Criminal Appeal No 84 of 2015 to sentence him leniently, specifically requesting a non-custodial sentence or a reduction to time served, considering the one year he spent in pre-trial custody. 9. The other grounds of Appeal were not argued. The courts therefore assume that they were abandoned. Respondent’s Submissions 10. The Respondent, opposes the appeal in its entirety. It is submitted that both the conviction and sentence were lawful, proper, and fully supported by the evidence on record. 11. The Respondent submits that the offence of rape is founded on three main ingredients, namely; penetration, lack of consent, and positive identification of the perpetrator, and that each must be proven to sustain a conviction, as held in the case of George Opondo Olunga vs. Republic (2016) eKLR. 12. The Respondent argues that the complainant was mentally impaired a fact testified to by the clinician in his evidence and observed by the trial court when she appeared to testify. Consequently, she lacked the legal capacity to give consent. It is further stated that the complainant testified that the Appellant took her hand and led her to her house. Once inside, they removed clothes and had sex. 13. It is submitted that the above account was conclusively corroborated by medical evidence from PW4, a clinical officer, who observed that the hymen was broken and produced medical records in support of his testimony. 14. On the element of identification, the Respondent refers to the testimony of PW2, who stated she knew the Appellant as he was a neighbour. Further, the victim herself testified that she knew the Appellant as https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11818/eng@2026-07-23 2

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“Baba wambui”. The Respondent submits this constituted positive identification beyond reasonable doubt. 15. Regarding the Appellant's defense, the Respondent argues that his allegations of bribery against the police and witnesses were never proved in court. The Respondent urged this court to dismiss the Appeal in its entirety. Summary of the Evidence 16. PW1 was the complainant. She testified that she is an orphan and she lives with relatives in Particulars withheld Area. she stated that she was uncertain of her exact age or her year of birth. 17. She told the court that on the material day, she had attended prayers at Wa Daktari at around 5:00 pm.On her way back home at around 6:00 pm, she met the Appellant who held her hand and led her to his house. She described the Appellant’s house as a small, one-roomed dwelling. Once inside, the Appellant locked the door. The Appellant removed his clothes and directed her to remove her brown dress and the panty, which she did. She stated that the Appellant then did have sex with her “from the front and behind” while they were lying on the floor. she stated that she had not agreed to have sex with him and that he never loved him. 18. She remained in the Appellant's house until Monday morning at around 8:00 am, when she told him she wanted to go wash her clothes. He opened the door for her. PW1 returned home. she was given food, and subsequently taken, first to the police station then to Muriranjas Hospital. She stated after the ordeal, she felt pain when passing urine. 19. Under cross-examination, she maintained that he had accosted her on the road home around 7:00 pm. She explained that she did not scream because she believed the neighboring homes were too far away for anyone to hear her. She denied being in love with the Appellant or ever seeking out men for sex. At some point in cross- examination the trial magistrate recorded “she shouts”. During re-examination by the magistrate, she stated that; “I did agree to go with him to his house and I did agree to have sex with him. I did not agree that way. I had refused to go with him but then he begged me over and over again till I agreed”. 20. PW2, was the complainant’s sister. She testified that she lived with the complainant, one other sister, and an uncle. She informed the court that she moved back to the family home in 2020, following the death of their mother, and the complainant has been under her care since. She stated that on 12th June 2022, at about noon, she left for her church, leaving the complainant preparing to attend a different service. Shew was to attend church with one Franciah. When the complainant failed to return home by 6:00 pm , she began to panic. After several days of searching and calling relatives, she filed a missing person report at Kahuro Police Station. That was on 15th June 2022. 21. She further testified that, later that day, Fraciah , arrived at their home and informed her that the complainant had been found in a coffee farm. she called the police o and the Area chief, who advised her not to give a bath to the complainant. 22. PW2 further stated that the complainant identified her captor as Juli, a man PW2 knew only by sight from the local centre. She confirmed she was present when the Appellant was arrested and positively identified him in the dock. 23. On cross-examination, she maintained that the complainant had never slept outside the home since the year 2020. She denied having any grudge against the Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11818/eng@2026-07-23 3

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24. PW3 was the Investigating Officer. She informed the court that a missing person report was first lodged at the station on 15th June 2022 by one JLN(PW2), who reported that her sister, had been missing since the 12th June 2022. she directed the family to provide a photograph for circulation. Shortly thereafter, she was informed that the complainant had been found. She came to learn that the complainant was mentally impaired. She interrogated the complainant, and noted that she was able to communicate well despite her disability. During the interview, the complainant disclosed that a man well known to her, and who lived in the neighbourhood, had accosted her while she was returning from church and forced her into his house where he raped her. She escorted the complainant to the hospital for medical examination. She stated that the complainant’s age as 27 years. 25. The officer further stated that the Appellant was arrested, after the complainant led the police to the specific house where she had been detained. She confirmed that the Appellant before the court was the individual arrested. 26. On cross-examination, PW3 confirmed that her investigations were based on reports from witnesses who had seen the Appellant with the complainant and maintained that the complainant was the one who positively identified the Appellant's house to the police at the time of the arrest. 27. PW4 was the Deputy Clinical officer in -charge at Muriranjas Hospital. He informed the court that the complainant, was brought to the facility on 15th June 2022 with allegations of having been raped. On her arrival, PW4 observed that the victim was mentally impaired. He conducted physical examination and found that her clothes were intact. On examining the genitalia, he noted that the hymen was broken, but the rupture was not recent. There were no fresh bruises nor tears; high vaginal swab showed no spermatozoa. He concluded that the likely cause of injury was a penetrative object. He produced the treatment notes the P3 form, the PRC form, the laboratory request form and the laboratory results. 28. Under cross-examination, he confirmed that the victim had been raped. He explained that his assessment was based on the history provided by the relatives his own clinical observations and a foul discharge from the complainant’s vagina. 29. PW5 was FW,. She testified that she was a neighbour to the complainant. She had known her many years, dating back to the time the complainant's mother was still alive. She recalled attending a church service with the complainant in May 2022, after which they attended further prayers at a member's home. She stated that as they approached their neighbourhood around 6:00 pm, they parted ways because the complainant wanted to go to the shopping centre, while the witness proceeded to her home. Defence case 30. The Appellant testified as DW1 and called one witness. He testified that the complainant's (PW1) testimony was not from personal experience but rather on what she had been told to say. He denied committing the offence, maintaining that he was framed and had no prior knowledge of such allegations until he was informed by the police at the police station. 31. DW2, was the mother of the Appellant. She told the court that the allegations adduced during the trial were unknown to her. She described the Appellant as a supportive son who assists her at home, noting that he is the one who helps care for the two children she was left with. 32. On cross-examination, she stated that; “I do not know what happened in the month of May 2022, before my son was arrested”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11818/eng@2026-07-23 4

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Analysis and Determination 33. This being a first appeal, this Court is enjoined to reconsider and re-evaluate the evidence tendered before the trial court, and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and should therefore give due allowance for that disadvantage. This principle was settled in Okeno v Republic [1972] EA 32, and reaffirmed by the Court of Appeal in Kiilu & Another v Republic [2005] 1 KLR 174 and other subsequent decisions of the superior courts. 34. Upon consideration of the record of appeal, the grounds of appeal, and the written submissions by both parties, the issues falling for determination are:a. Whether the prosecution proved the offence of rape beyond reasonable doubt; b. Whether the sentence imposed was lawful and appropriate. SUBDIVISION - Whether the offence of rape was proved beyond reasonable doubt 35. 36. The Appellant was convicted under Section 3(1) as read with Section 3(3) of the Sexual Offences Act. To sustain a conviction under that provision, the prosecution must prove beyond reasonable doubt that: i.) there was penetration; ii.) the penetration was intentional and unlawful; iii.) it occurred without the complainant's consent, or where consent was obtained, it was obtained through force, threats, intimidation or other unlawful means. The above position has consistently been affirmed by the Court of Appeal, including in the case of George Opondo Olunga v Republic [2016] eKLR. Penetration 37. Penetration is defined under Section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organs of one person into the genital organs of another. 38. The complainant testified that after the Appellant led her into his house, he removed his clothes, directed her to remove hers and thereafter had sexual intercourse with her from both the front and behind. She remained confined in the Appellant's house until the following Monday morning. 39. The complainant's testimony was corroborated by PW4, the clinical officer, who examined her shortly after the incident. Although the examination revealed no fresh tears or spermatozoa, PW4 observed that the hymen was broken though the breakage was not recent; the complainant had a foul-smelling vaginal discharge and a urinary tract infection, and concluded that the injuries were consistent with penetration by a blunt object. He completed both the P3 Form and the PRC Form which were produced in evidence. 40. The Appellant has argued that the broken hymen could have resulted from causes other than sexual intercourse. That submission cannot avail him. The law is now settled that proof of penetration does not depend upon the existence of fresh genital injuries, spermatozoa or a ruptured hymen. Even the slightest penetration is sufficient. In Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal held that penetration may be proved through the evidence of the victim alone, if believed, and medical evidence merely lends corroboration where available. Likewise, in Fappyton Mutuku Ngui v Republic [2014] eKLR, the Court of Appeal observed that absence of spermatozoa or physical injuries does not negate penetration, particularly where the victim's testimony is credible. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11818/eng@2026-07-23 5

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41. This Court therefore finds that the victim’s testimony, despite the mental challenges was able to communicate and could recall clearly what happened. The investigations officer too observed that the complainant was in a position to narrate what happened. She took the police to the crime scene and she identified the Appellant by name. I have no reason to doubt her testimony. 42. The court is satisfied that notwithstanding the absence of recent injuries on the medical evidence the testimony of the complainant proved penetration beyond reasonable doubt. Whether there was consent. 43. The principal issue raised by the Appellant is that the complainant admitted that she eventually "agreed" to accompany him to his house after he repeatedly begged her and therefore consented to sexual intercourse. 44. Consent within the meaning of Section 42 of the Sexual Offences Act must be voluntary and informed. A court is required to examine all the surrounding circumstances in determining whether there was genuine consent. 45. The complainant consistently testified that she initially refused to accompany the Appellant. She only went after persistent persuasion. Once inside the Appellant's house, the door was locked, she remained confined for several days and was only released after requesting permission to wash her clothes. On cross- examination she stated that she did not agree to have sex with him. Her conduct immediately after release, reporting to relatives and the police, is wholly inconsistent with consensual sexual relations. 46. The evidence further demonstrates that the complainant suffered from mental impairment. The Appellant has argued that in any event there was no evidence to prove that the complainant was mentally challenged owing to the fact that no psychiatric report was produced in evidence. 47. PW4 testified that the complainant was mentally disturbed during examination. PW3 similarly stated that she was mentally unstable though capable of narrating the events. The trial magistrate also had the advantage of observing her demeanour while testifying and at some point, during cross- examination the Magistrate made a note: “she shouts”. The Court further notes that the complainant testified that she did not willingly submit to the sexual act. Her evidence, read as a whole, demonstrates submission rather than voluntary participation. 48. Although no psychiatric assessment was produced, the evidence overwhelmingly established diminished mental capacity. Section 43(4)(e) of the Act recognizes that consent is absent where the complainant lacks the capacity to appreciate the nature of the act. The Court therefore rejects the Appellant's argument that the complainant's statement that she eventually agreed to accompany him constituted consent to sexual intercourse. Agreement to accompany another person cannot be equated with consent to sexual intercourse, in any event. Identiffcation 49. The Appellant did not challenge his identification. However, the complainant led police officers directly to the Appellant's house after she was rescued. PW3 confirmed that the Appellant was arrested at the very house identified by the complainant. PW2 also testified that she knew the Appellant as a resident of the locality. 50. Further, although the offence occurred in the evening, the complainant spent several days with the Appellant inside his one-roomed house. There was therefore ample opportunity for observation and recognition. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11818/eng@2026-07-23 6

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51. This was therefore a case of recognition rather than identification of a stranger. Recognition has consistently been held by the Court of Appeal to be more reliable than identification of an unknown person. (See Anjononi & Others v Republic [1980] KLR 59). 52. There existed no possibility of mistaken identity and the Court is therefore satisfied that the Appellant was positively identified. 53. To conclude on this issue, am satisfied that the prosecution proved the offence of rape beyond reasonable doubt , and consequently the Appellant’s conviction was safe. The sentence 54. The Appellant was sentenced to ten (10) years' imprisonment. Section 3(3) of the Act prescribes a minimum sentence of ten years imprisonment, which may be enhanced to imprisonment for life. The sentence imposed was therefore the statutory minimum. It cannot be said to have been harsh or excessive. 55. The Appellant also complained that the trial court failed to consider the period spent in custody before conviction as required by Section 333(2) of the Criminal Procedure Code. The Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR emphasized that sentencing courts are obliged to expressly account for pre-trial custody. 56. The record shows that although the Appellant was granted bond, he did not utilize it. He therefore remained in custody throughout trial. He was arrested on 23rd August 2022 and the conviction was on 17th August 2023. Therefore, he is entitled to have the one year spent in custody discounted from the 10- year sentence. 57. In conclusion: a) The Appeal on conviction is hereby dismissed and the finding of the court below upheld. b) The sentence is hereby varied only to the extent that the it is deemed to have taken effect from 23rd August 2022. DATED SIGNED AND DELIVERED AT ISIOLO, VIA MICROSOFT TEAMS, THIS 23RD DAY OF JULY 2026. S. CHIRCHIR JUDGE. In the presence of: Roba Katelo- Court Assistant. The Appellant. Mr. Majale for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11818/eng@2026-07-23 7

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