Republic v Oliech & 3 others (Sexual Offence 60 of 2020) [2025] KEMC 122 (KLR)
The bottom line
#A Vihiga court convicted two men of gang rape without DNA evidence, while acquitting a third whose defence was corroborated by a witness.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the offence of gang rape was proved, specifically that the accused persons committed the offence of rape in association with another or others, or with common intention, in the company of another or others who commit the offence of rape
- 2.Whether there was penetration
- 3.Whether the accused persons were properly and clearly identified as the perpetrators together with others
Key legal issues
#Proof of penetration
Penetration was established by the complainant's oral evidence corroborated by the clinical officer's findings and the PRC, P3 and treatment records
The complainant testified she was raped repeatedly in turns by three men and that one of them inserted grass in her vagina. The clinical officer found lacerations on the vaginal wall, an absent hymen, bruises on the waist and evidence of recent penetration about three hours after the incident. Relying on circumstantial and medical evidence, the court found the complainant was actually penetrated on 1st October 2020.
Identification of the perpetrators and alibi defences
The 2nd and 3rd accused were positively identified at an identification parade by the complainant who knew them by appearance; their alibis, unsupported by the relatives they claimed were with them, were rejected as afterthoughts
The complainant spent considerable time with her assailants and later identified the 2nd, 3rd and 4th accused at an identification parade. The 2nd and 3rd accused claimed to have been at home with mothers and relatives but failed to call those crucial witnesses. The court found their alibi defence suspicious and uncorroborated and held them to be the principal offenders.
Gang rape by association or common intention
The offence was proved to have been committed by a group of three men acting in association and with common intention
The complainant testified that while each man raped her, the others pinned her to the ground and guarded the scene, and they threatened to kill her. The court held that the three men knew the intention of one another and assisted and abetted the act, satisfying the definition of gang rape under Section 10 of the Sexual Offences Act.
Absence of DNA evidence
Failure to take DNA samples from the accused did not weaken the prosecution case
The accused complained that no blood, saliva or DNA samples were taken from them. The court relied on Martin Nyongesa Wanyonyi vs Republic, holding that subjecting an accused to medical examination to prove the offence is not a mandatory requirement, and found the complainant's and clinical officer's evidence sufficient.
Culpability of the 4th accused
The 4th accused was acquitted because his evidence that he went to rescue the complainant was corroborated by Dw4 and the prosecution case against him was not proved beyond reasonable doubt
The court believed the 4th accused's narration that he was at home preparing a meal with Dw4 when they heard screams and he rode to the scene to help. Dw4's evidence corroborated him, and the complainant's evidence on him was uncorroborated and mixed. The court found him not guilty on both counts and acquitted him under Section 215 CPC.
Legal principles established
#- In criminal cases, the burden of proof rests on the prosecution and the standard is that of beyond reasonable doubt
- Rape and defilement may be proved by oral and circumstantial evidence, not necessarily by medical evidence
- Subjecting an accused to medical/DNA examination to prove the offence is not a mandatory requirement of law
Court orders
#- 1.The 4th accused (William Onyango) is found not guilty on both counts and acquitted under Section 215 of the Criminal Procedure Code
- 2.The 2nd accused (Willis Ondieki) is found guilty as charged on both counts (gang rape and the alternative count of committing an indecent act with an adult) and convicted under Section 215 of the Criminal Procedure Code
- 3.The 3rd accused (Stafiord Ocharo) is found guilty as charged on both counts (gang rape and the alternative count of committing an indecent act with an adult) and convicted under Section 215 of the Criminal Procedure Code
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original criminal jurisdiction of the magistrates' court under the Criminal Procedure Code (Cap 75) and the Sexual Offences Act No. 3 of 2006
Relief refused
#Acquittal of the 2nd and 3rd accused
The court found their alibi defences uncorroborated and the prosecution case proved beyond reasonable doubt
Conviction of the 4th accused
His account that he went to the victim's aid was corroborated by Dw4, and the complainant's evidence on him was uncorroborated and mixed
Costs
No costs order (criminal proceedings)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In criminal cases, the burden of proof rests on the prosecution and the standard is that of beyond any reasonable doubt.
The position of the law is that the offences of rape and defilement are proved by way of oral evidence and circumstantial evidence and not necessarily by medical evidence.
I find that the prosecution led cogent evidence that the accused raped the complainant who knew them by appearance and the accused did not offer any evidence that controverted the prosecution case.
I find that the prosecution has not proved to the required standard of beyond reasonable doubt against 4th accused and I find him not guilty of the offence herein.
I hereby do find them guilty as charged on both counts and therefore proceed to convict them accordingly in terms of Section 215 of the Criminal Procedure Code Cap 75 Laws of Kenya.
I therefore find him not guilty on both counts and proceed to acquit him as per Section 215.
Issues in the judgment
#The complainant's own testimony (Pw1) attributes the acts to 'the 1st accused' who absconded, yet the court convicted the 2nd and 3rd accused; the judgment does not expressly reconcile this naming discrepancy
Contradiction as to whether the 1st accused inserted grass during the rape or 'collected grass' afterwards, and whether two or three men raped her in the complainant's evidence
The 2nd accused's defence evidence is internally inconsistent as to which relative he was with (grandmother stated first, then 'at home with his mother')
The court treats the claim of minority by the 2nd and 3rd accused as suspicious rather than investigating age as a jurisdictional fact, despite birth certificates produced as exhibits
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Oliech & 3 others (Sexual Offence 60 of 2020) [2025] KEMC 122 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/122/eng@2025-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.