1.The appellant herein was charged with the offence of rape contrary to section 3(1) (a) (c) (3) of the Sexual Offences Act No 3 of 2006 with particulars being that on May 10, 2021 at about 1600hrs in Kiambere location of Mbeere South sub county within Embu county intentionally and unlawfully caused his penis to penetrate the vagina of NMM by use of force and threats.
2.He also faced an alternative charge of committing an indecent act with an adult contrary to section 11(a) of the SOA No 3 of 2006 whose particulars were that: on May 10, 2021 at about 1600hrs in Kiambere Location of Mbeere South sub county within Embu county intentionally touched the vagina of NMM against her will.
3.In count II, he was charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. The particulars of the offence being that May 10, 2021 at about 1600hrs in Kiambere location of Mbeere South sub county within Embu county assaulted NMM, thereby occasioning her actual bodily harm.
4.The prosecution called a total of four witnesses in support of its case and being convinced that the prosecution had proved its case beyond any reasonable doubt, the trial magistrate convicted and thereafter sentenced the appellant to ten (10) and one (1) years imprisonment in counts I and II respectively. It is against that decision that the appellant has filed this appeal based on the following grounds:
5.The court directed the parties to canvass the appeal by way of written submissions and both parties complied with the said directions.
6.The appellant submitted that the case was not proved beyond any reasonable doubt, the same lacked consistency, and that the complainant used the same to frame him. That in reference to the injuries sustained by the complainant, the same could have been as a result of attack by the wild animals that are found in the forest where the complainant had gone to fetch firewood. He also submitted that he was held in custody for six days as opposed to the required time frame as provided for by the Constitution. He argued that no DNA test was done to conclusively determine that he was responsible for the alleged offence of rape. He contended that his mitigation and defence were never considered by the trial magistrate and that the charges herein were a frame up by the complainant. He urged this court to allow this appeal.
7.The respondent submitted that upon evaluation of the evidence of the four witnesses together with the sworn evidence of the appellant, the trial court convicted the appellant of the main charges of rape and assault and sentenced him to serve ten and one year imprisonment respectively. The respondent on the onset submitted that the appeal herein is destitute of merit and thus should be dismissed. The respondent argued that all the necessary ingredients of the offence were proved by the prosecution in that, in reference to penetration, the complainant gave a detailed account of what happened on the material day.
8.That on the May 10, 2021 the complainant had gone to fetch firewood when she saw the appellant approaching and he was looking suspicious. She started running away but he ran after her and grabbed her. He hit her with a blow and gagged her mouth, then took a panga and placed it on her neck and threatened to cut her. He then undressed her after which, he took out his penis and inserted it into her vagina and raped her. The appellant threatened to kill the complainant if she told anyone. Further, he poked her on her eyes and cut her with a panga on her neck. Her evidence was corroborated by that of PW3 a clinician, who produced the complainant’s treatment notes, P3 and PRC forms which corroborated the evidence of the complainant.
9.On whether there was consent, the respondent submitted that any skepticism regarding consent is dispelled by the facts of the case, the type of injuries the complainant suffered, the fact that the complainant raised alarm, fled the scene and then promptly sought treatment and reported the incident to the police, are elements that make it abundantly evident that there was no consent. Reliance was placed inter alia on the cases of Charles Ndirangu Kibue v Republic  eKLR and the Court of Appeal decision of Republic v Oyier  eKLR. On whether the appellant was identified, it was submitted that the appellant was a person well known to the complainant and therefore, identification was by way of recognition.
10.On the ground that DNA was not conducted to conclusively determine that the appellant was responsible for the act, it was submitted that it is now a principle in law that DNA test is not mandatory or necessary to establish an offence of rape. The respondent relied on the case of AML v Republic  eKLR; as such, the same was not necessary to prove the offence of rape. On sentence, the respondent argued that the Sexual Offences Act provides for a sentence of imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life. Reliance was placed on the case of Shadrack Kipchoge Kogo v Republic eKLR to buttress the point that for a trial court’s sentence to be overturned, it must be shown that the trial court made an error in law, considered irrelevant factors or that the sentence was excessive and disproportionate. In the end, this court was urged to dismiss the appeal for it is devoid of any merit.
11.The duty of the first appellate court is to revisit the evidence adduced in the trial court and to arrive at its own conclusion whether or not to support the findings of the trial court bearing in mind that the trial court had the opportunity to see the witnesses. [See Okeno v Republic  EA 32].
12.The ingredients of the offence of rape are; intentional and unlawful penetration of the genital organ of one person by another, coupled with the absence of consent. In Republic v Oyier (1985) KLR pg 353, the Court of Appeal held as follows:-
13.Therefore, the issues for determination in this appeal are as follows;
14.The first issue for determination is whether there was intentional and unlawful penetration of the genitalia of the complainant. The complainant vividly testified how while she was fetching firewood, the appellant violently attacked, assaulted and thereafter raped her. Further, the evidence of PW3 who produced the complainant’s treatment notes, P3 and PRC forms corroborated her evidence. I therefore find that there is evidence of penetration. [See George Owiti Raya v Republic  eKLR]. And on whether there was consent, the complainant narrated how while she was in the field fetching firewood, the appellant appeared and that he looked suspicious; that she ran away but the appellant ran after her and caught up with her, grabbed, assaulted and thereafter raped her. She stated that she raised alarm, fled the scene and then promptly sought treatment and reported the incident to the police. Further, the complainant narrated how she tried to scream but the appellant gagged her mouth and threatened her with dire consequences should she tell anyone. Therefore, I hold and find that, indeed, all these elements make it abundantly evident that there was no consent.
15.On whether the appellant procured consent by way of threats and/or intimidation, I find that the appellant was well known to the complainant given that they come from the same village and further, she had known him for a long time. His denial that he was not within the area where the complainant was at the material time and that, the injuries sustained by the complainant could have been as a result of attack by the wild animals is unfounded. Indeed the complainant testified on how the appellant cut her with a panga on the neck and further threatened to kill her should she tell anyone. In that regard, it is quite evident that the said consent was obtained by use of force and threats. The Court of Appeal for East Africa in Rafaeri Munya alias Rafaeri Kibuka v Reginam  20 EACA 226 observed that:
16.On whether the prosecution’s evidence was marred with contradictions and inconsistencies, the appellant neither submitted on the same nor pointed out the alleged contradictions and inconsistencies. But that notwithstanding, the Court of Appeal in the case of Willis Ochieng Odero v Republic  eKLR, held:
17.Therefore, each case must be considered on its own particular circumstances. There are cases where the inconsistency is so minor that clearly it will be of little effect and certainly does not necessarily mean that the witness is lying or that his testimony cannot be relied on. The judge must take all the evidence and all the circumstances of the case into account in deciding whether to accept a witness’s evidence or any part of his testimony. (Nyakisia v R ECA Crim App 35-D-71; -/5/71; Duffus P, Spry v P & Lutta J A, in the East African Court of Appeal).I have independently gone through the record, and I find that the evidence by the prosecution flowed well and that there was nothing material to discredit the same.
18.On whether the appellant’s mitigation and/or defence was considered, the trial magistrate analyzed all the evidence by both the prosecution and defence and noted that the evidence adduced by the appellant was a sham and an afterthought as it failed to displace the overwhelming evidence adduced by the prosecution that clearly connected him with the offence. Therefore, I hold that this ground is baseless as the same is unfounded. [See John Muthoka Ndolo v Republic  eKLR].
19.On whether the charges herein were instigated by the alleged grudge to fix the appellant herein, the complainant stated that there existed no vendetta between them. But even assuming that there existed any, the prosecution proved its case beyond reasonable doubt and this was buttressed by the confirmation by the trial magistrate who not only heard but also saw the demeanor of the witnesses herein.
21.Sentencing is the discretion of the trial court but such discretion must be exercised judiciously and not capriciously. The discretion is however limited to the statutory minimum and maximum penalty prescribed for a particular offence.
23.Similarly, in the case of Wanjema v Republic (1971) EA 493 the court stated as follows;
24.I accordingly find that the sentences meted out are lawful.
25.The appeal herein lacks merit and the same is dismissed. I uphold both conviction and sentence in the two counts.
26.It is so ordered.