Makau v Republic [2022] KEHC 9798 (KLR)

Makau v Republic (Criminal Appeal E055 of 2021) [2022] KEHC 9798 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9798 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Appeal E055 of 2021

MW Muigai, J

July 14, 2022

Between

Emmanuel Musyoka Makau

Appellant

and

Republic

Respondent

(Being an Appeal from the Judgement Delivered on 16th June 2021 in S.O Case Number 4 of 2020 by Hon. E. Wambugu, Senior Resident Magistrate in Kithimani)

Judgment

1. The Appellant, Emmanuel Musyoka Makau is charged with rape contrary to Section 3 (1) (a) (b) (3) of the Sexual Offence Act, No. 3 of 2006.

2. The particulars of the offence are that on 17th of January 2020 at [particulars withheld] Village, in [particulars withheld] Sub County within Machakos County, intentionally and unlawfully caused his penis to penetrate the vagina of FNM who is an imbecile.

3. In the alternative, the accused person is charges with committing an indecent Act with an adult contrary to section (11) A of the of the Sexual Offence Act, No. 3 of 2006

4. The particulars of the offence are that on 17th of January 2020 at [Particulars Withheld] Village, Kikumini sub location in Masinga Sub County within Machakos County, intentionally touched the vagina of FNM a woman mentally retarded with his penis against her will.

5. The Accused person pleaded not guilty to the main and alternative charge and the matter proceeded for hearing with the prosecution calling five witnesses.

Prosecution Case 6. PW1, FN who lives in Masinga, stated that she undertakes house chores and was in Court because of the Accused person Makau (pointed at the accused person). She stated that the Accused person was found by her mother in the farm while sleeping and was asked what he was doing there. He went into the farm and waited until her mother had left. It was her testimony that when he came, he found her at home and told her he wanted them to sleep together. She told him not to disturb her. He started chasing her round the house and she went into the house and told him to stop disturbing her. He broke the door and got in. She told the Court that he got hold of her by force and tore her clothes, she screamed but no one answered. He slept with her by force on the bed. He hit her against the wall and she sustained injuries on her left hand. She kept telling him to stop but he went on raping her. When he heard Mama M outside calling out, the accused left the house while running. She was left crying, she got a seizure and fell.

7. MN picked her, called her mother and told her she was unwell. She told her what had happened and she went to M’s home and reported to his father. They refused to talk and Musyoka said the case should go to court. Pw1 was taken to Masinga hospital and was given medication. She produced the P3 form and the Post Rape Care Form.

8. Upon cross examination, she stated that the accused person is her neighbour and nephew. She stated that she reported the incident to her mother when she came, she was raped at 1pm. It was her testimony that the accused was born out of wedlock. She said it is not true that she fabricated the case against the accused since he came with his mother and that they love him as one of the family members.

9. There was no re-examination.

10. PW2 was Shadrack Mbithuka Ndingi, the Assistant Chief of Kikumene stated that on 22nd January 2020, he received information that an epileptic girl had been raped by a known person, she had reported the matter. He was given the suspects name, Musyoka Makau whom he knew as he was/is a neighbour. He arrested him and took him to Kikumini police patrol base. He knew the complainant who was also his neighbor. He stated that the accused’s grandfather was a village elder and the complainant was a relative of the accused. He said he had no grudge with the accused.

11. In cross examination, he stated that he received a report from the police, village elder and the complainant’s mother. He did not know if the village elder recorded his statement, his work was to arrest the suspect. Investigations were conducted by the police and doctor. He arrested the accused since the offence was/is serious. He did not know the relationship between the accused and the complainant’s family. He had no report of the accused’s relationship with many women.

12. There was no re- examination.

13. PW3 was BNM who lives in Ulutya. She stated that on 17th January 2020, Musyoka Makau raped her daughter called FN. He got hold of her, placed her on PW3s bed and slept with her. She saw the accused in her home and he ran away on that day to her farm. F told her M slept with her and tore her clothes. She reported to the Police and took her to hospital in Masinga where she was examined and a report filed.

14. She knew the accused before the incident. The accused is her grandchild. F’s dad died in 1992. She is epileptic and mentally challenged. The accused saw her and ran away. She said she had differences with the accused’s parents but not the accused person.

15. It was her testimony that the last time in court the accused’s father was reprimanding her for having the accused charged in court. She brought the accused to court because of raping her daughter. She lives at home with her daughter only. Members of Community Policing arrested the accused and took him to the police.

16. Upon Cross examination, she stated that the accused is her grandson. She saw the accused running away and recorded that in her statement. She did not ask her daughter the time of the incident but it was towards 4pm. She notified the grandfather and his father’s brother, she could not report that evening since the Police Station was/is far. She asked to see accused’s parents so that she could tell them what had happened.

17. It was her testimony that she and her daughter are not using the case as a frame up. She did not take long before taking her child to hospital, they went the next day since offence was in the evening and the hospital was/is far at Masinga and there were challenges in obtaining transport. She went to hospital in Kikumi and they were referred to Masinga hospital. At the Police Station, she was given a referral note to take Pw1 to be attended to at the Hospital.

18. The Sub Chief was present when she was recording her statement. She recorded that the daughter was raped between 3-4pm. Her daughter is mentally challenged; she took her to hospital when she was a child when her mental challenge was noted. She said the report from hospital was at home. The last time in court, the accused’s father was at the gate.

19. There was no re-examination.

20. PW4 was Wilkin Tioni currently working at Gikomba Police post in Masinga Sub County. He stated that on 18th January 2020 while working at Kikumi Police station, at about 4. 30pm FN from [particulars withheld] village accompanied by her mother reported that on 17th January 2020 at around 4 a suspect went to their home and she knew him. That the Accused found her alone and requested her for milk, she did not give him. That person wanted to discuss love with her but she declined and went into the house, the suspect followed her there and had sexual intercourse with her. She screamed but there was no one nearby to assist her, the neighbors were far away and the complainant is epileptic.

21. He recorded her report and issued a P3 form to them to go to Masinga Sub County Hospital for her examination. She was examined and a P3 form filled. The doctor found whitish discharge and lacerations. On 22nd the Area Assistant Chief whom he had informed, arrested the suspect and brought him to the Police Station. The suspect said the victim did not know him. He did not visit the scene and did not know the complainant.

22. Her home is far from the station. The complainant’s mother told him that the accused and the complainant are cousins. He did not investigate if there was a grudge between the complainants’s and accused families.

23. Upon Cross examination, he stated that he indicated the complainant had a mental problem in the charge sheet. He did not take the complainant to hospital to determine her mental status. The complainant is the one who testified in court. The Complainant does not have a mental problem but she is epileptic. A P3 form was filed by the doctor ascertaining that the complainant was forced to have sexual intercourse. The accused did not break the door but pushed it by force and it disconnected on a small part. F in her statement recorded that accused broke the door to gain entry. The broken door is not before court but photographs were taken and Pw4 could bring it to court, he said that many people touched the door hence they could not pick accused’s finger prints. He did not take the accused to hospital because many days had lapsed since the incident.

24. He further testified that the complainant identified the accused person and recognized him. He did not know if the accused and the complainant had grudges at home. The complainant was alone at the time of the offence. Her witness is her mother. He had not fabricated the case against the accused. If there are other witnesses mentioned by the complainant, they could bring them.

25. He proceeded on leave and thereafter he was transferred. The initial statement was misplaced and he recorded a similar statement.

26. PW5, Eric Kioko Mwita, a clinical officer based at Masinga Hospital stated that he had the P3 for FNM who alleged she was raped on 17th January 2020 and was brought to hospital on 18th January 2020. He examined her and found she had left sided weakness and was mentally challenged. On physical examination, he noted that she had a swollen elbow, on her vagina she had fresh lacerations on her labia and her hymen was absent. She had a whitish vaginal discharge. Pregnancy test was done and it was negative. High vaginal swab showed puss cells and epithelia cells. There were no spermatozoa.

27. Pw5 said she was put on medication and he filled her P3 form. He concluded there was rape through penetration and struggle due to injury on the elbow. He produced the P3 form Post Rape Care Form and Lab Form. He said the perpetrator was not brought to hospital and that he did not know the complainant or accused. He also said he had not treated the complainant before.

28. Upon cross examination, Pw5 said the complainant said she was raped at 2pm. That the complainant was mentally retarded and he relied on the statement of the parent. From the physical examination, he noted that the complainant had left sided weakness and a history of epilepsy which affects the brain. He did not know if the complainant testified. He examined the complainant and established she was penetrated. She was not brought by a Police Officer; she was accompanied by her mother. When a patient attends the hospital, they first save life before reporting to the police.

29. It was his testimony that on a victim being raped, they have to give preventative medication immediately without waiting for accused to have an infection. The complainant had a P3 Form from Kikumini Police Station, she was raped on 17th January 2020 and brought to hospital on 18th January 2020. He said he reported what he saw, he only examined the complainant. He also said the white discharge can be due to an infection or due to semen. He did not see the accused person since he was not brought to hospital and he hasn’t mentioned him in his examination.

30. There was no reexamination.

31. The Trial Court found that the accused person had a case to answer.

Defence Case 32. The accused person elected to give sworn evidence.

33. He stated that he lives in Kikumini Location and was a casual labourer. He understood the charges and had heard the Prosecution witnesses. He recalled that on 5th January 2020 his mother left home for work in Nairobi, he left with him as his brother had secured employment for him. On reaching Nairobi, he was taken to work but they found another person had been employed. He stayed with his brother until 21st January 2020 when he returned home. He slept at Kikumini Trading Centre where he had booked a room. On 22nd January 2020, He spent the day at Kikumini market until the evening. At 9. 30PM he saw the Assistant Chief of the area who came and arrested him, he was surprised and he was not given reasons for his arrest.

34. At the Police Station, Police informed him that he was to be charged with rape against FN who is his aunt. He was surprised. He was taken to hospital and on 24th January 2020 he was charged in court with an offence he was not aware of. The complainant’s mother started that her parents and his parents do not have a good relationship, they have differences which demonstrates why he was charged. It is because of the differences between the complainant’s mother and his parents that he was framed with the offence.

Trial Court Judgement 35. The Trial Court delivered its judgment on 16th of June 2021 and found the accused guilty. The court -cited the case of James Njau v Republic [2014] eKLR on the ingredients of rape. On the first issue of whether the accused person intentionally an unlawfully caused his penis to penetrate the vagina of the complainant who is an imbecile, the court found that the complainant’s evidence was corroborated by medical evidence proving that penetration was achieved. The Court found that absence of spermatozoa did not mean that penetration was not achieved. It could be that the perpetrator did not ejaculate during the act hence the absence of spermatozoa. Further, nothing was placed before the court to prove that the accused person was examined and this was confirmed by PW5 who indicated that the accused person was not presented to him for examination.

36. On consent, the Trial Court found by the complainants’ testimony that she was raped despite declining to sleep with the accused and he hit her against the wall causing her injuries which injuries sustained by the complainant are corroborated by the medical evidence that she had a swollen elbow establishing that she was forced into the sexual Act.

37. Thirdly, the Trial Court found that evidence was reproduced to prove that the complainant suffers from mental challenges from the evidence of her Mother (PW3) and the Clinical Officer (PW5) who examined her. The Court observed Pw1 giving her testimony and noted that she was coherent and gave evidence during her lucid moments.

38. Fourthly, the complainant stated that the accused person was her nephew and the complainant’s mother stated that he (accused) was her grandchild, which was not denied by the accused person. The complainant and her mother recognized him on the material day and there are no chances of mistaking his identity. Fifthly, the complainant stated that the accused person was her perpetrator and she was at home alone when she was raped. Her evidence is rebutted by that of the accused who says he was in Nairobi on 17/01/2020 but he did not avail his brother to confirm his whereabouts. The complainant and the mother attest that the accused was in their home on 17/01/2020 and he ran into the farm thus placing him at the scene on the material day.

39. On the defense of fabrication raised by the accused person, the Trial Court found that the differences between the accused parents and the complainant’s mother’s differences were between the parents and not Pw1 and the accused in person. The Court found this defense not to be viable.

40. The accused was found guilty and after mitigation, consideration of the victim impact report and time spent in custody, the accused person was sentenced to 9 years imprisonment.

The Appeal. 41. Dissatisfied by this judgment, the Appellant has filed this Appeal seeking to have his sentence reviewed and conviction quashed or fix a retrial date on the grounds that;a.The prosecution side did not produce eye witnesses before the court to show the court the true evidence in this case and to prove beyond reasonable doubt about commission of the offence.b.As a suspected person, he was not taken to hospital for medical examination concerning the case to ascertain the truth of the alleged offence according to the I.O which is mandatory.c.There was one Mama M who is said to have found him at the scene and he ran away, she could have been brought to court to testify as a witness.d.PW2 made it clear before the Court she had a grudge with his parents and that alone is a reason enough that there is some doubt in this case.

42. The Appeal was disposed of by written submissions.

Appellant’s Submissions. 43. The Appellant filed submissions on the following grounds;a.There was no tangible evidence adduced against him for the offence.b.Some procedures were overlooked thus giving some doubts to the prosecution witnesses evidence.c.Medical examinations were not carried out to see if the results collaborated those of the complainant.d.Before he was arrested and convicted, he was pursuing an engineering course which if given a chance, he would put effort and see it completed.e.He is a first offender and swear never to repeat such a silly mistake again. He has learnt the hard way.

Respondent’s Submissions. 44. The Respondent filed submissions dated 5th April 2022 in which Counsel submitted in opposition of the Appeal that PW1 testified that the Appellant was found sleeping in the farm by PW3, he ran away to the farm but came back after PW3 had left. The Appellant without any hesitation proceeded to do the ill fateful ordeal to the victim Pw1. This places the appellant at the scene of the crime. Secondly, it was submitted that there is no legal requirement that makes it mandatory for an accused person to be taken for medical examination. The victim was taken to hospital for medical examination on 18th January 2020 and the Appellant was arrested 5 days after the ill-fated ordeal. Reliance was placed on the case of George Kioji vs Republic Criminal Appeal no 270 of 2012.

45. Thirdly, on the issue of failure to call Mama Maria who rescued the victim, it was submitted that the prosecution cannot be directed by the Defence on which witnesses to call for evidence. Section 143 of Evidence Act provides;Section 143“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.Further, that the evidence on record was sufficient to prove the Appellant’s guilt. Reliance was placed on the case of Bukenya v Uganda [1982] E.A 549.

46. It was submitted that the grudge between the victim’s mother and the accused’s parents could not be a ground of appeal as the Appellant acted out of his own accord to commit the crime involved in this sexual offence matter.

47. The Respondent submitted that the Appellant was properly identified by PW1 and PW3 in particular Pw3 met the Appellant in the farm on that ill fated date and upon seeing her he ran away. He is well known to her since his father passed on in 1992 and he is the grandchild. Reliance was placed on the case of Peter Musau Mwanzia v Republic [2008] eKLR.

48. While relying on Section 3(1) (a) (b) as read with section 3(3) of the Sexual Offences Act, it was submitted that penetration was proven beyond reasonable doubt from the P3 form, Post Rape Care Form and Lab form that the victim was raped and a struggle ensued due to the injury on the elbow. Pw5 testified that physical examination showed the victim had left sided weakness and was mentally challenged, that her vagina had fresh lacerations on the labia and her hymen was absent. The victim had a whitish vaginal discharge and a high vaginal swab showed pus cells and epithelial cells.

49. On the sentence, it was sufficient since the court took the time spent in custody into consideration.

Determination. 50. I have considered the Lower Court Record, the Petition of Appeal and the submissions thereto.

51. Bearing in mind that this is a first Appeal and the Court is expected to analyze and evaluate all the evidence adduced afresh before the lower Court and draw its own conclusions while noting that this Court neither saw nor heard any of the witnesses, I am guided by the case of Okeno v 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 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 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 he trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post [1958] E.A 424. ”

52. The Prosecution case in summary is that the Appellant was seen in PW3’s farm on17th of January 2020 at [particulars withheld] sub location in Masinga Sub County within Machakos County. The Appellant saw PW3 and ran away then later came back after she had left and started disturbing the complainant. He followed Pw1 round the house and she got into the house and the Appellant followed her there. He broke the door, got in, got hold of her by force and tore her clothes. She screamed but no one answered. He slept with her by force on the bed, he hit her on the wall and she sustained injuries on her left hand. When he heard Mama M calling, he ran. She got a seizure and Mama M came and picked her and called her mother. She came and her daughter told her that she had been raped by Musyoka. She took her to hospital the next day where she was examined by PW5 who established that the complainant had been raped. On physical examination, he found that she has a swollen elbow, on her vagina she had fresh lacerations on her labia and her hymen was absent. She has a whitish vaginal discharge. Pregnancy test was done and it was negative. High vaginal swab showed puss cells and epithelia cells. There were no spermatozoa.

53. Section 3 of the Sexual Offence Act, No. 3 of 2006 that provides that; 3. (1)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(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.

54. The elements of rape are therefore a person intentionally or unlawfully commits an act which causes penetration with his or her genital organs. The other person does not consent to the penetration; or the consent is obtained by force or by means of threats or intimidation of any kind.

55. The next element is proving of penetration. “Penetration” is a term of art and is defined under Section 2 of the Sexual Offences Act to mean“the partial or complete insertion of the genital organs of a person into the genital organs of another person”

56. This was explained in the case of George Owiti Raya v Republic [2013] eKLR where it was held:-“There was superficial penetration because there was injury on the vaginal opening as the medical evidence has indicated and further there was a whitish-yellow foul smelling discharge seen on the genitalia... it remains therefore that there can be penetration without going past the hymen membrane.”

57. In this case, the P3 Form indicates that there is laceration on the labia and there is no hymen. There can only be lacerations if there was a struggle. This evidence corroborates that of PW1 and PW5 as far as penetration, was forced as far as this case is concerned.

58. With regard to consent, there appears to have been a struggle between the Appellant and the victim leading to her sustaining an injury on the left arm. This evidence was stated by the victim and corroborated by PW5 who examined her. Further, the victim was categorical that she did not consent, she said “he got hold of me and tore clothes…..He slept with me by force on the bed. He hit me against the wall and I sustained injuries on my left hand.”

59. The elements of rape have thus been proved in this case.

60. The next issue the appellant raises is the failure to call Mama Maria to the stand. In as much as I agree with the Appellant to the extent that she should have been called to the stand as she is the one alleged to have called out and that is what led to the Appellant to run away, she is the one who assisted the Appellant when she got a seizure, the witnesses to be called to the stand remain the decision of the Prosecutor as it is their case. Similarly, the Appellant did not call any other witness to corroborate his evidence of alibi defense that he was not within the area on 17/01/2020 when rape occurred.

61. The failure of mama Maria to testify does not case doubt and does not outweigh the evidence already on record. Her evidence would have given us more of circumstantial evidence rather than direct evidence. Section 143 of Evidence Act does not prescribe the number of witnesses to testify to establish a case.

62. Thirdly, the Appellant contends that he was not taken for medical examination which is mandatory. In the case of Martin Nyongesa Wanyonyi vs. Republic [2015] eKLR the court held that;''As such, it is evident that subjecting an accused to a medical examination to prove that he committed the offence is not a mandatory requirement of law and we find this ground to be unfounded.”

63. The test to be applied inter alia to the principles in the cited cases elsewhere in this analysis is to be found in the case of Bassita v Uganda S. C. Criminal Appeal No. 35 of 1995 where the Supreme Court held:“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victims own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victims evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”“For evidence to be capable of being corroborated it must:(a).Be relevant and admissible Scafriot [1978] QB 1016. (b).Be credible DPP v Kilbourne [1973] AC 729(c).Be independent, that is emanating from a source other than the witness requiring to be corroborated Whitehead J IKB 99(d).Implicate the accused.

64. I am persuaded by this decision and I find that the medical examination of the Appellant was not mandatory. The evidence on record was/is enough to sustain the charge. In this case there was no spermatozoa and I do agree with the Trial Court that perhaps there was no ejaculation and therefore I do not find the other tests necessary.

65. As regards the issue of lack of an eye witness, the Appellant submitted that this raises doubt. Proof in Criminal cases can either be by way of direct or circumstantial evidence. The Court in the case of Moses Kabue Karuoya vs. Republic [2016] eKLR observed that :“The evidence used to prove guilt is classified as either direct or circumstantial. Direct evidence, is a statement about a fact constituting a disputed material proposition of a rule of law, while circumstantial evidence is testimony about a fact or facts from which the disputed material proposition may be inferred. Thus, circumstantial evidence can be defined as relying on certain proved or provable circumstances from which a conclusion can be drawn that it was the accused person who committed the offence. It is evidence of circumstances which can be relied upon not as proving a fact directly but instead as pointing to its existence. It differs from direct evidence, which tends to prove a fact directly, typically when a witness testifies about something which that witness personally saw, or heard. Both direct and circumstantial evidence are to be considered, but to bring a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the circumstances. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty. This follows from the requirement that guilt must be established.”

66. In Abanga Alias Onyango vs. Rep CR. A No.32 of 1990 (UR) the Court of Appeal set out the principles to apply in order to determine whether the circumstantial evidence adduced in a case are sufficient to sustain a conviction. These are:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.

67. In this case, the evidence places the Appellant at the scene of crime, the Appellant and the complainant are related, in fact they know each other very well; the medical evidence corroborates the evidence of the complainant with no gap; the Appellant’s alibi defence and alleged frame up did not case doubt on the Prosecution case. In the Trial Court, the Appellant said he will never repeat such a “silly mistake,” again. This shows there is a chain here, there is no escape from the conclusion that the Appellant raped the victim Pw1.

68. Lastly, the Appellant submits that since there was a grudge between his parents and those of the complainant, that was the reason he was charged. This allegation was denied by PW1 and PW3. The nature of the grudge does not come out and the Appellant only alleges the same. It is upon the Appellant to prove that this grudge led to his conviction. If it was a frame up as alleged the medical evidence by Pw5 Clinical Officer confirmed the victim was raped. Pw3 found the Pw1 who informed her of the incident and she took her to the doctor who confirmed rape. This ground therefore fails.

69. The powers of the High court to review a sentence of a subordinate court are provided for under Section 362 of the Criminal Procedure Code which states as follows:“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate Court.”

70. Section 3 (3)of the Sexual Offence Act, No. 3 of 2006 that provides that;(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.

71. The mandatory minimum sentence for the offence of rape under section 3(3) of the Sexual Offences Act is not less than 10 years which may be enhanced to life imprisonment. The Trial court sentenced the Appellant to 9 years after taking into consideration the time the Appellant spent in custody. It gave the minimum sentence in this case. The Appellant appears remorseful and even re thinking the course he was pursuing, these are the thoughts that should have been running through his mind before he committed the crime. To loose great opportunities because of “silly mistakes” can really cost one a lot and as the Appellant said, this lesson is learnt the hard way.

Disposition. 1. I therefore find no reason to interfere with the conviction and sentence of the Lower Court.

2. In the end, The Appeal fails and is dismissed.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 14TH JULY 2022 (VIRTUAL CONFERENCE).M.W. MUIGAIJUDGE