Mutunga Matuku v Republic

4. She testified that after completing her laundry, she entered the house to return the basin, whereupon she noticed that the Appellant had followed her inside. According to her, the Appellant held a red piece of cloth, caused her to fall to the floor and dragged her onto a bed. He then placed the cloth on her forehead, making her feel weak and unable to scream. She further testified that the Appellant tore her skirt, removed her undergarment and bra, and proceeded to rape her. She stated that she experienced pain during the ordeal. While the Appellant was still assaulting her, her mother entered the room, found him in the act, and left to call for help, prompting the Appellant to flee from the scene. 5. PW1 further testified that the Appellant abandoned his motorcycle and a bag at the scene before escaping. She stated that she was taken to Makindu Sub-County Hospital for examination and treatment before the matter was reported to Makindu Police Station. She identified the torn skirt she was wearing during the incident, the P3 Form, PRC Form, treatment notes, laboratory request forms, prescriptions and hospital card, all of which were produced as exhibits. She maintained that she had never seen the Appellant before the incident and asserted that she had been a virgin prior to the attack. 6. During cross-examination, PW1 reiterated that the Appellant followed her into the house after she had finished washing clothes, pushed her to the ground, dragged her onto the bed and raped her. She testified that the Appellant held her by the neck, placed the pink cloth on her forehead, and prevented her from calling for help. She further stated that the ordeal lasted about twenty minutes, that she bled and sustained tears to her vagina, and that she later saw the Appellant flee towards a nearby bush. She reiterated that the Appellant was the person who raped her. 7. PW2 - AM, Mother to the Complainant, testified that on 11th January 2022 at about 4.00 p.m., the Appellant arrived at their home riding a motorcycle while the complainant was washing clothes. She welcomed him and offered him a seat after he inquired whether the homestead belonged to Mwongeli. Since she did not know him, she decided to notify her husband and left the Appellant at the compound while she went to call him. 8. PW2 testified that upon returning home, she noticed unusual silence and, after hearing commotion inside one of the rooms, she entered and found the Appellant raping the complainant. She stated that the Appellant had one hand on the complainant's neck while using the other to cover her mouth. She screamed for help and attempted to confine the Appellant in the room, but he managed to escape. She pursued him to where he had parked the motorcycle, removed its key and the Appellant fled into a nearby bush. 9. She further testified that the complainant appeared weak after the assault and was later taken to hospital and to the police station. PW2 identified the complainant's torn black skirt and testified that a bag left on the Appellant's motorcycle contained clothing, personal effects and a Huduma Card bearing the Appellant's name. She further stated that after the Appellant's arrest, she positively identified him as the man she had found sexually assaulting her daughter. She maintained that neither she nor her daughter had known the Appellant before the incident and urged the court to render justice. 10. During cross-examination, PW2 maintained that she found the Appellant in the act of raping the complainant inside the house. She denied fabricating the allegations and reiterated that she personally witnessed the Appellant committing the offence before he escaped. 11. PW3 - Miriam Nyakio, a Medical Officer, testified that she was attached to Makindu Sub-County Hospital. She stated that she examined the complainant on 12th January 2022 following allegations of rape. Upon examination, she observed that the complainant's clothes were torn, her vagina had fresh tears, and her hymen was broken. She further noted that although there was no active bleeding, there was reddening of the genital area and visible fresh blood vessels. Laboratory investigations ruled out https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12567/eng@2026-07-31 2

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pregnancy, sexually transmitted infections and HIV infection. She produced the P3 Form, PRC Form, treatment notes, laboratory request forms, prescriptions and hospital card as exhibits. 12. During cross-examination, PW3 explained that the age reflected in one section of the P3 Form was an estimated age and clarified that the complainant had confirmed her actual age. She further testified that fresh hymen tears were consistent with forceful penetration and explained that bleeding is not an indispensable feature in every rape case. She also stated that the complainant reported that she had not previously engaged in sexual intercourse. She concluded that the complainant's injuries were consistent with the history of rape that had been given. 13. PW4 – JMM, the Father of the Complainant, testified that on the material day he was working at his carpentry shop when his wife informed him that an unknown man had come to their home. Upon returning home, he found the Appellant seated outside the compound. He confronted him and noticed that his trouser zip was open while the complainant was crying nearby. When he attempted to apprehend him, the Appellant fled from the scene. PW4 thereafter took the complainant to hospital for treatment and reported the matter to the police. 14. PW4 further testified that the Appellant left behind a motorcycle and a bag containing personal belongings, including a Huduma Card bearing the Appellant's name. He identified the Appellant in court as the person he had found at his homestead on the material day and maintained that the Appellant fled immediately after being confronted. 15. During cross-examination, he reiterated that the complainant had been raped inside the house while other family members were outside the compound. 16. PW5 – Police Constable Gladys Santa, the investigating officer, testified that the matter was reported at Makindu Police Station on 11th January 2022 at about 7.40 p.m. She stated that she received the report from the complainant, who narrated the circumstances leading to the offence. According to PW5, the complainant informed her that on the material day she had been washing clothes at her home while her mother, aunt and grandmother were within the compound when the Appellant arrived riding a motorcycle. The Appellant introduced himself as a pastor, inquired about the whereabouts of Mwongeli and engaged the complainant and her aunt in conversation. He further stated that he had come to conduct prayers, prompting the complainant's mother to leave in search of her husband, while the complainant's grandmother proceeded to the kitchen and the aunt left the compound. 17. PW5 testified that the complainant informed her that after she had finished washing and hanging the clothes, she entered the house, whereupon the appellant followed her inside, closed the door, pulled her to the ground, placed a red handkerchief on her forehead, tore her undergarments and sexually assaulted her. She further testified that she booked the report, escorted the complainant to Makindu Sub-County Hospital where she underwent medical examination and treatment, after which a P3 Form and a Post Rape Care (PRC) Form were duly completed. She also recorded statements from the complainant and the other witnesses. 18. PW5 further testified that during the appellant's escape from the scene, his Huduma Card was recovered, enabling the police to establish his identity and subsequently effect his arrest. She confirmed that several exhibits were recovered from the scene, including the complainant's torn black skirt, the red handkerchief allegedly placed on the complainant's forehead during the assault, a red carrier bag containing hair, three horns, coconut shells and sea shells, assorted clothing comprising a coat, vest, shirt and trousers, as well as a jungle green bag. All the recovered items were produced before the trial court as exhibits. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12567/eng@2026-07-31 3

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19. On cross examination, she testified that investigations revealed that the appellant had left his Huduma Card at the complainant's home, leading to his identification and eventual arrest. She stated that the complainant positively identified the appellant as the person who had defiled her. She further testified that the appellant escaped from the scene and was later arrested at Kibwezi. According to PW5, the complainant had been a virgin before the incident, had been choked during the assault, and the medical examination confirmed that she had been raped. 20. Upon being placed on his defence,DW1 – Mutunga Matuku (Appellant) denied committing the offence. He testified that he was arrested and taken to the Police Station, where he was informed that he was being accused of raping a girl. He stated that his Huduma Card and mobile phone were taken by the police and maintained throughout his testimony that he was innocent. He denied the charge and asserted that he had been wrongfully accused. 21. During cross-examination, he stated that he had been working as a cook in Likoni but did not produce any evidence to support that assertion. 22. Upon considering the evidence presented by both the prosecution and the defence, the learned trial magistrate was satisfied that the prosecution had established the offence of rape beyond reasonable doubt. The appellant was accordingly convicted on the main charge of rape contrary to Section 3(1) (a)(b) as read with Section 3(3) of the Sexual Offences Act and sentenced to serve ten (10) years’ imprisonment.. 23. Dissatisfied with that decision, the Appellant lodged this Appeal vide undated Memorandum of Appeal, challenging both his conviction and sentence on the following grounds;- 24. 1. That the learned trial magistrate erred in both fact and law by convicting him on evidence that did not meet the minimum threshold to uphold a conviction. 2. That the learned trial magistrate erred in both fact and law by not considering his sworn defence. 3. That the trial Magistrate erred in law and in fact by holding that the prosecution case was reliable to sustain a conviction while he failed to acknowledge the myriads of contradictions in the evidence of the prosecution witnesses. 4. That the learned magistrate erred in law and in fact by failing to observe that the whole case was purely based on trumped up charges and fabricated stories. The Appellant thus urged this court to allow the Appeal, quash the conviction and set aside the sentence. Appellant’s Submissions 25. The Appellant submits that the prosecution failed to discharge its burden of proving the offence beyond reasonable doubt. He argues that the prosecution evidence was fraught with gaps, inconsistencies and contradictions, rendering it insufficient to sustain a conviction. According to the Appellant, the trial court failed to subject the evidence to proper scrutiny and consequently reached a decision that was against the weight of the evidence. He further contends that the prosecution bore the burden of proving every ingredient of the offence, which burden never shifted to him. In support of this proposition, he relies on Sections 107, 108 and 109 of the Evidence Act, which place the legal and evidential burden upon the prosecution throughout the trial. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12567/eng@2026-07-31 4

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26. The Appellant challenges the evidence of identification, contending that it was unreliable and incapable of sustaining a conviction. He submits that the descriptions given by PW1 and PW4 regarding the clothing worn by the assailant materially differed, with PW1 describing the assailant as wearing a black coat, black trousers and a grey shirt, whereas PW4 testified that he was dressed in creamcoloured trousers, a cream coat and a grey shirt. The Appellant argues that these inconsistencies cast doubt on the correctness of the identification. He further submits that no identification parade was conducted despite the circumstances requiring one, thereby rendering the purported identification unsafe. In support of this argument, he relies on John Mwangi Kamau v Republic [2014] eKLR, R v Turnbull & Others [1976] 3 All ER 549, Michael Ng'ang'a Kinyanjui v Republic [2014] eKLR, and Cleophas Otieno Wamunga v Republic, Criminal Appeal No. 20 of 1982, for the proposition that courts must exercise great caution before relying on visual identification evidence. 27. On whether the prosecution failed to call crucial witnesses and conduct proper investigations, the Appellant submits that the prosecution failed to call material witnesses whose evidence would have shed light on the alleged offence. He argues that although PW1 testified that her mother, grandmother and aunt were present within the homestead on the material day, the investigating officer failed to record statements from all of them and omitted to call some of them as witnesses. He also contends that the arresting officer, who allegedly recovered the exhibits from him, did not testify, thereby leaving critical gaps in the prosecution's case. Further, he argues that the investigating officer failed to visit the scene of the crime, did not produce photographs allegedly taken at the scene, and failed to establish the nexus between the motorcycle recovered at the scene and the appellant. According to the Appellant, these investigative omissions weakened the prosecution's case and created reasonable doubt. 28. On whether penetration was proved beyond reasonable doubt, the Appellant submits that the prosecution failed to prove penetration, which is an essential ingredient of the offence of rape. While acknowledging the definition of penetration under the Sexual Offences Act and the evidential provisions of Section 124 of the Evidence Act, he argues that the medical evidence was contradictory and failed to support the complainant's account. He points to inconsistencies regarding the complainant's age as reflected in the medical documents and further contends that whereas PW1 testified that she bled during the alleged assault, PW3 testified that no blood was observed upon examination. According to the Appellant, these contradictions rendered the medical evidence unreliable and incapable of corroborating the complainant's testimony. 29. It was the Appellant’s case that the prosecution's case was riddled with material contradictions and inconsistencies, which the trial court failed to reconcile. He argues that the discrepancies relating to the complainant's age, the description of the assailant's clothing, and the medical evidence were substantive rather than minor and therefore cast doubt on the prosecution's version of events. He maintains that these inconsistencies rendered the prosecution evidence unreliable and inadmissible and that the trial court erred by failing to resolve them before convicting him. In support of this argument, he relies on Josiah Afuna Angulu and Charles Kiplang'at Ngeno v Republic, Criminal Appeal No. 77 of 2000, where the courts held that material contradictions and inconsistencies may render a conviction unsafe. He consequently urges the Court to accord him the benefit of the doubt and allow the appeal. Analysis and Determination 30. This Court has considered the material placed before it, the evidence for the Prosecution and the defence as well as the submissions made in this appeal. This is a first appellate court, this court is obliged to analyze and evaluated afresh all the evidence adduced before the lower court and to draw its own conclusions while bearing in mind that it neither saw nor heard any of the witnesses. This was stated https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12567/eng@2026-07-31 5

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by the Court of Appeal in the case of Okeno vs. Republic [1972] EA 32 where the Court of Appeal set out the duties of a first 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 vs. 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 Vs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; 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 vs. Sunday Post [1958] E.A 424.” 31. The main offence in which the Appellant herein was convicted of is rape. Section 3 of the Sexual Offences Act states as follows:“ (1) 32. 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. (2) In this section the term “intentionally and unlawfully” has the meaning assigned to it in section 43 of this Act. (3) 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.” Section 43 of the Sexual offences Act provides that;“ (1) An act is intentional and unlawful if it is committed—(a)in any coercive circumstance;(b)under false pretences or by fraudulent means; or(c)in respect of a person who is incapable of appreciating the nature of an act which causes the offence.(2)The coercive circumstances, referred to in subsection (1)(a) include any circumstances where there is—(a)use of force against the complainant or another person or against the property of the complainant or that of any other person;(b)threat of harm against the complainant or another person or against the property of the complainant or that of any other person; or(c)abuse of power or authority to the extent that the person in respect of whom an act is committed is inhibited from indicating his or her resistance to such an act, or his or her unwillingness to participate in such an act.(3)False pretences or fraudulent means, referred to in subsection (1)(b), include circumstances where a person—(a)in respect of whom an act is being committed, is led to believe that he or she is committing such an act with a particular person who is in fact a different person;(b)in respect of whom an act is being committed, is led to believe that such an act is something other than that act; or(c)intentionally fails to disclose to the person in respect of whom an act is being committed, that he or she is infected by HIV or any other life-threatening sexually transmissible disease.(4)The circumstances in which a person is incapable in law of appreciating the nature of an act referred https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12567/eng@2026-07-31 6

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to in subsection (1) include circumstances where such a person is, at the time of the commission of such act—(a)asleep;(b)unconscious;(c)in an altered state of consciousness;(d)under the influence of medicine, drug, alcohol or other substance to the extent that the person's consciousness or judgment is adversely affected;(e)mentally impaired; or(f)a child.(5)This section shall not apply in respect of persons who are lawfully married to each other.” 33. In light of the above provisions, it is clear that a person is guilty of rape if he/she commits sexual intercourse with another person either against their will or without their consent as enumerated under the Section 43 of the Sexual offences Act, cited above. 34. The ingredients of the offence of rape therefore include;- 35. 1. Intentional and unlawful penetration of the genital organ of one person by another. 2. Absence of consent. 3. Identification of the perpetrator. These ingredients were elaborated by the Court of Appeal in Republic v Francis Otieno Oyier [1985] KECA 55 (KLR), where the Court held as follows:“ The prosecution still had to prove the second element of the offence of rape, and that is lack of consent for as the predecessor of this Court said in Upar v Uganda [1971] EA 98, lack of consent always remains an essential element of the crime of rape and so it should be specifically dealt with.The learned magistrate had the correct appreciation of the mens rea in rape. It is primarily an intention and not state of mind. Thus the mental element is to have intercourse without consent, or not caring whether the woman consented or not: DPP v Morgan (1975) 61 Cr Appl. R 136 HL The prosecution must prove either that the complainant physically resisted, or, if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist; Archbold Criminal Pleading Evidence and Practice 40th Edn pp 1411 – 1412 paragraph 2881 and R v Harwood K (1966) 50 CR App R 56. So if a woman yields through fear of death or through duress, it is rape and it is no excuse that the woman consented first, if the offence was afterwards committed by force or against her will; nor is it any excuse that she consented after the fact.” 36. On the first issue whether the prosecution proved penetration beyond reasonable doubt. The appellant submits that penetration was not proved beyond reasonable doubt and that the medical evidence was inconsistent with the complainant's testimony. He particularly points to the alleged inconsistency that whereas PW1 testified that she bled following the assault, PW3 testified that there was no active bleeding during the medical examination. He also argues that the medical documents reflected inconsistent ages of the complainant, thereby rendering the medical evidence unreliable. It is further submitted that the prosecution evidence was contradictory and incapable of sustaining a conviction. 37. Upon independent re-evaluation of the evidence, I note that PW1 gave a detailed and consistent account of the incident. She testified that after completing her laundry and entering the house, the appellant followed her inside, pushed her to the floor, dragged her onto the bed, placed a red cloth on her forehead, tore her skirt and undergarments, and had sexual intercourse with her without her consent. She stated that she experienced pain during the ordeal and bled from her private parts. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12567/eng@2026-07-31 7

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38. Her testimony was substantially corroborated by PW2, who testified that upon returning to the house, she found the appellant in the act of raping the complainant while restraining her by the neck and covering her mouth. PW2's evidence was direct evidence of the assault and lends considerable support to PW1's testimony. Equally, PW3 corroborated the complainant's account. She examined the complainant the following day and observed that the complainant's clothes were torn, the vagina had fresh tears, the hymen was broken, and there was reddening of the genital area with fresh blood vessels. PW3 concluded that those injuries were consistent with forceful sexual intercourse. She explained in cross-examination that the absence of active bleeding at the time of examination did not negate penetration because bleeding is not present in every case of rape. 39. It follows therefore that the contradiction alleged by the appellant regarding bleeding is not material. PW1 was describing what transpired immediately after the assault, whereas PW3 examined her on the following day. The absence of active bleeding at the time of medical examination does not contradict PW1's evidence that she bled during the assault. 40. Similarly, the discrepancy regarding the complainant's age on the P3 Form was satisfactorily explained by PW3, who testified that the age entered was merely an estimate and confirmed that the complainant's actual age had been verified. 41. Accordingly, the medical finding that the complainant's hymen was broken and that she sustained fresh genital tears was therefore consistent with penetration. Hence, this Court finds that the prosecution proved the element of penetration beyond reasonable doubt. 42. On whether consent was obtained, the Appellant contends that the prosecution evidence was fabricated and did not attain the threshold required for a criminal conviction. 43. The evidence on record, however, points irresistibly to the absence of consent. PW1 testified that the appellant followed her into the house, forced her onto the ground, dragged her onto the bed, placed a cloth over her forehead making her weak, restrained her and raped her. She stated that she was unable to scream because the appellant held her by the neck and covered her mouth. 44. PW2 corroborated this evidence by testifying that she found the appellant in the act of raping the complainant while restraining her by the neck and covering her mouth. She immediately screamed for help, prompting the appellant to flee. The medical findings equally support PW1's account. PW3 observed fresh genital injuries, a broken hymen and fresh blood vessels, injuries which she concluded were consistent with forceful penetration. 45. In light of the accounts rendered by both PW1 and PW2, the Appellant's allegation that the case was founded on fabricated allegations is unsupported by any evidence. Furthermore, neither PW1 nor PW2 was shown to have harboured any grudge against the appellant. Indeed, both testified that they had never known the Appellant before he came to their home on the material day. No motive for falsely implicating the appellant was suggested during cross-examination. 46. In those circumstances, I find that the prosecution proved beyond reasonable doubt that the sexual intercourse occurred without the complainant's consent. 47. On whether the appellant was positively identified as the perpetrator. On this, the Appellant submits that he was not positively identified, that there were contradictions regarding the description of his clothing, that no identification parade was conducted, and that the investigations were inadequate and thus the conviction was unsafe. In as much as it would be ideal to always conduct identification parades, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12567/eng@2026-07-31 8

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it is not always necessary depending on the circumstances of a case as was stated by the Court of Appeal in Andrea Nahashon Mwarisha v Republic [2016] KECA 600 (KLR) where the Court stated thus:“ Identification parades are necessary though not absolutely where the witness purports to identify a suspect did in extremely difficult conditions, say, where the offence is committed at night and when visibility may have been a challenge having regard to the availability or lack of light and when the circumstances under which the offence is committed are harrowing to the witness thereby impairing his ability to positively perceive and with certainty identify the culprit or where the incident lasts for a short time. The purpose of identification parade as explained in Kinyanjui & Others v Republic, (1989) KLR 60: "is to give an opportunity to a witness under controlled and fair conditions to pick out the people he is able to identify and for a proper record to be made of that event to remove possible later confusion......” Further identification parades are meant to gauge and test the correctness of a witness's identification of a suspect given the circumstances under which he claims to have identified the suspect. See John Mwangi Kamau v Republic (2014) eKLR. In this case, the offence was not committed in difficult circumstances at all. It was during the day and visibility was not poor. The complainant too spent some time with the appellant at the scene of crime. Indeed, when the appellant and his accomplices dragged him into the forest, it was the appellant who used the complaint's scarf to gag him. He is also the one who tied him to a tree. Thereafter, as soon as the appellant was found in possession of the motorcycle, the complainant was summoned to the scene upon which he identified his motorcycle in the possession of the appellant before they all ended up at Kwale Police Station. In those circumstances, of what evidential value would have been the identification parade? We cannot think of any. To our mind, it would have been superfluous. The identification parade would even have been hampered by want of earlier description by the complainant of any attributes of the appellant. Even if the complaint by the appellant was valid, we are still of the view that given the circumstances under which the identification was made, there was no room for mistaken identity. The complainant had all the opportunity to properly and positively identify the appellant as one of the robbers.” 48. In this case, unlike cases that depend solely on fleeting visual identification, there was a prolonged interaction between the appellant and the prosecution witnesses. PW1 testified that she first saw the appellant when he arrived at their homestead riding a motorcycle and remained within the compound before following her into the house. She had ample opportunity to observe him before and during the assault. Equally, PW2 interacted with the Appellant when he introduced himself as a pastor and inquired about Mwongeli. She later returned and found him in the act of raping the complainant. She chased him as he fled and removed the key from his motorcycle. Her evidence therefore constitutes direct evidence identifying the appellant as the assailant. 49. In addition, PW4 testified that he encountered the appellant immediately after the incident, observed him within the compound with his trouser zip open, and attempted to apprehend him before he escaped. 50. More significantly, the appellant abandoned his motorcycle, bags and Huduma Card at the scene. PW5 testified that the recovery of the Huduma Card enabled the police to identify and subsequently arrest the appellant. Although the appellant claimed that the police recovered the Huduma Card from him at the time of his arrest, the prosecution witnesses were unanimous that it was recovered at the complainant's homestead as the appellant fled the scene. I find no reason to doubt their testimony. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12567/eng@2026-07-31 9

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51. In the circumstances, I find no merit in the appellant's complaint that an identification parade ought to have been conducted. The appellant was identified by witnesses who had ample opportunity to observe and interact with him during broad daylight, and his identity was further corroborated by the recovery of his personal belongings, including his Huduma Card, at the scene of the offence. An identification parade was therefore unnecessary. 52. In respect of the alleged discrepancy regarding the colour of the appellant's clothing, this in my view, is a minor inconsistency that does not go to the root of the prosecution case. Human recollection differ, particularly in relation to peripheral details such as colour of clothing. This was affirmed by the court of Appeal in Watu v Republic [2016] KECA 696 (KLR), where the Court held that;“ However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question” 53. Equally, in this case, what remained consistent throughout the prosecution case was that the appellant was found at the complainant's homestead, fled immediately after the offence, abandoned his personal belongings, and was positively identified by PW1, PW2 and PW4. 54. The appellant further faults the investigations on the grounds that the prosecution failed to call certain witnesses, visit the scene of the crime, and summon the arresting officer to testify. In my view, these omissions did not occasion any prejudice to the appellant or create any gaps in the prosecution's case. The prosecution called the complainant (PW1), an eye witness (PW2), the medical officer (PW3), the complainant's father (PW4), and the investigating officer (PW5), whose evidence was coherent, consistent and sufficient to establish the charge. In any event, it is settled law that the prosecution is not obliged to call a multiplicity of witnesses to prove its case; what is required is that the evidence adduced is sufficient to establish the offence beyond reasonable doubt. I am therefore satisfied that the investigations were adequate and that the evidence presented was sufficient to sustain the appellant's conviction. 55. I have also considered the appellant's sworn defence. His defence amounted to a mere denial coupled with the assertion that he had been falsely accused. He did not offer any plausible explanation as to how his personal belongings, including his Huduma Card, came to be recovered at the complainant's homestead. Neither did he demonstrate any motive on the part of the complainant or her family, who consistently testified that they had not known him prior to the incident, to falsely implicate him. In the circumstances, I find that the appellant's defence did not raise any reasonable doubt capable of displacing the cogent, consistent and credible evidence adduced by the prosecution. 56. Having carefully re-evaluated the entire evidence on record, I am satisfied that the prosecution proved beyond reasonable doubt all the essential ingredients of the offence of rape. I consequently find that it was the appellant who committed the offence, and that the learned trial magistrate properly convicted him on the evidence presented. 57. As regards the sentence, it is well settled that sentencing is a matter within the discretion of the trial court, and an appellate court will only interfere where it is shown that the trial court acted on a wrong https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12567/eng@2026-07-31 10

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principle, considered irrelevant factors, failed to consider relevant factors, or imposed an unlawful or manifestly excessive sentence. 58. In the present case, the appellant was convicted of the offence of rape contrary to Section 3(1)(a)(b) as read with Section 3(3) of the Sexual Offences Act and sentenced to ten (10) years' imprisonment, being the minimum sentence prescribed by law. I find no error in principle or any lawful basis to warrant interference with the sentence. It is accordingly upheld. 59. In the result, I find that the appeal lacks merit. The learned trial magistrate properly evaluated the evidence, correctly applied the law, and rightly convicted the appellant. . Consequently, the appeal against both conviction and sentence is dismissed. The conviction is hereby upheld, and the sentence of ten (10) years imprisonment is affirmed. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI, THIS 31ST DAY OF JULY 2026. KENNEDY KANDET JUDGE In The Presence Of: Appellant Present In Person From Makueni Main Prison Ms Musango For The Respondent 4 | Page https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12567/eng@2026-07-31 11

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