Republic v Thumbi (Sexual Offence E016 of 2024) [2026] KEMC 233 (KLR)

3. PW1 later attended the Kiugoini Police Station, where she identified the accused. She described him as having dreadlocks, wearing a jungle jacket, grey trousers, and a red shawl with a star emblem. Crucially, in cross-examination, PW1 stated that she and the accused come from the same area and that she knew him by looks even before the incident. She bore no grudge against him. She was emphatic that he was the pillion passenger and the one who applied the cotton wool against her mouth. She was unable to identify the rider. 4. The complainant’s father, PMM (PW2), testified that at about 3.00 a.m. on 2nd September 2024, he was called by a neighbour to Nairobi area. He found PW1 bleeding from the head, face, and mouth, with blood-soaked clothing. He took her to the hospital and later obtained a P3 form. He afirmed that PW1 subsequently identified the accused as one of her assailants. 5. No. 56759 Corporal Francis Sishanya (PW3), the investigating oficer, testified that the accused was arrested on 10th September 2024 wearing the same clothes described by PW1. He did not conduct an identification parade because PW1 stated that she already knew the accused. PW3 recorded witness statements, visited the accused’s residence, and thereafter preferred the charges. 6. Dr. Irine Adhiambo (PW4) produced the medical examination findings. PW1 had extensive injuries, including deep scalp lacerations, bilateral periorbital swelling, facial bruising, friction burns, lower‑lip wounds, and multiple lacerations on her arms and back. Her genitalia showed bruising of the labia majora and introitus, active bleeding, and oedema around the hymen. PW4 concluded that PW1 had been sexually assaulted. The injuries were approximately five days old at the time of examination. 7. The accused elected to give unsworn evidence. He stated that on the material date he had travelled to Rorie for a fundraiser, returned home by 7.00 p.m., and slept. He denied leaving the house thereafter. He claimed he was arrested for smoking bhang and was later informed that he faced a rape charge. He called no witnesses. 8. The court must now determine the criminal liability of the accused with respect to each count. Issues for Determination (Count‑by‑Count) 1. Count I – Gang Rape (Section 10, Sexual Offences Act) i. Whether unlawful and non-consensual penetration occurred; ii. Whether more than one person participated; iii. Whether the accused was positively identified as one of the perpetrators. 2. Alternative Count – Indecent Act (Section 11(a), Sexual Offences Act) 9. To be considered only if penetration by the accused is not proved. 3. Count II – Abducting in Order to Subject to Grievous Harm (Section 260, Penal Code) i. Whether PW1 was induced, deceived, or forced into accompanying the perpetrators; ii. Whether the accused participated in the abduction; iii. Whether the intent to subject PW1 to grievous harm is established; 4. Count III – Grievous Harm (Section 234, Penal Code) i. Whether PW1 sufiered grievous harm; https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/233/eng@2026-03-04 2

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ii. Whether the injuries were infiicted by the accused acting jointly with another. 5. Count IV – Assault Causing Actual Bodily Harm (Section 251, Penal Code) 10. Whether this count is subsumed in Count III, arising as it does from the same transaction. Analysis and Determination 11. The medical findings of PW4 leave no doubt that PW1 was sexually assaulted violently. Her injuries were severe, extensive, and wholly consistent with multiple penetrative acts and physical violence. There were bruises seen on the labia majora and introitus, there was active bleeding, bruised around the hymen with oedema. There is no contest on whether rape occurred; the contest is on identity. 12. PW1 stated unequivocally that she knew the accused by looks because they came from the same area. Recognition, as distinguished from the identification of a stranger, is regarded in law as more trustworthy, though it must still be approached with caution. The Court of Appeal in Anjononi v Republic [1980] KLR 59 held that recognition is “more reliable than the identification of a stranger because it depends on the personal knowledge of the assailant by the witness.” That principle governs this case. PW1 did not see the accused fieetingly; she interacted with him under adequate lighting at the petrol station area before the assault. She attributed to him a specific and memorable action: placing cotton wool soaked in a liquid against her mouth. The court finds this to be clear, natural, and reliable evidence of recognition. 13. The defence of alibi was unsupported, uncorroborated, and contrived late in the day. An alibi must be tested against the prosecution's evidence. Where the prosecution adduces suficient evidence placing the accused at the scene, the alibi must be rejected, as held in Kiarie v Republic [1984] KLR 739 (CA). The recognition evidence of PW1, supported by the medical and circumstantial evidence, places the accused squarely at the locus in quo and dislodges the alibi. 14. On the second count, the deception regarding travelling to OLA petrol station, followed by the application of a stupefying substance and subsequent violence, clearly constitutes abduction within section 260 of the Penal Code. The intent to subject PW1 to grievous harm is proved by what actually transpired. The variance in the stated time is not prejudicial to the accused and is curable under section 382 of the Criminal Procedure Code, consistent with Yongo v Republic [1983] KLR 319 where the court held that a defect in a charge is only fatal if it goes to the substance of the charge and causes prejudice, while minor errors that do not mislead the accused are curable under section 382 of the Criminal Procedure Code, which provides that no finding or sentence should be upset for technical defects unless they result in a failure of justice. 15. Regarding the third count, PW1 sustained grievous harm as defined in section 4 of the Penal Code. The nature of the injuries, deep scalp lacerations, facial trauma, and severe genital injuries, indicates a high level of brutality. The evidence shows that these injuries were infiicted during the same assault in which the accused actively participated. 16. The fourth count, alleging actual bodily harm, arises from the same events that constitute grievous harm. The law discourages duplicity. The proper approach is to convict on the more serious charge and acquit on the lesser, consistent with Cherere s/o Gukuli v R (1954) 21 EACA 478 17. Having examined the totality of evidence with the caution required for cases resting substantially on recognition, and having satisfied myself under the proviso to section 124 of the Evidence Act that PW1 was truthful, consistent, and credible, the court finds that the prosecution has proved its case against https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/233/eng@2026-03-04 3

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the accused beyond a reasonable doubt in respect of Counts I, II, and III. In respect to count IV, the court finds that the same is a duplex charge. 18. Accordingly, the accused is convicted in respect to counts I, II, and III pursuant to the provisions of section 215 of the Criminal Procedure Code. JUDGMENT DATED SIGNED AND DELIVERED IN COURT ON THE 4TH DAY OF MARCH 2026 SIGNED V. O. ADET SENIOR PRINCIPAL MAGISTRATE In the Presence of The Accused Person. Ms. Rogito for the State Ms. Chemutai as the Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/233/eng@2026-03-04 4

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