Republic v JNM (Criminal Case E006 of 2025) [2026] KEMC 58 (KLR)

The Prosecution’s case. 7. It is the prosecution’s case through the victim pw 1 that on the material day and time she was at work with the accused who happens to be her uncle and each of them was engaged on their respective duties and after a short while they took a rest and started telling stories and according to Pw 1 the accused was overly excited with sexual stories to the extent of asking her how may boyfriends Pw 1 had and Pw1 informed her that she had only 1 despite receiving advances from many others. She soon informed him that she needed a rest and she went to her room to relax. 8. That while relaxing in her room she saw the accused move towards the chicken stalls and saw him took a bottle that had coconut oil and she assumed that that he was intending to treat the chicken as he has always done soon thereafter, she heard the door being closed and she thought that the accused was restricting the chicken from entering the house and destroying the chicken feeds but she was mistaken, she felt a tap on her back and buttocks. 9. She turned to see who had tapped her only to find it was the accused and who told her the following words, “mjomba leo lazima unipee” loosely translating to uncle today you must give me. While she was still processing all that she stood up only to be pushed back on the bed by the accused, she woke up again and tried to push the accused away as she headed towards the door but she found the door had been closed and the accused pulled her back to the bed and a struggle ensued and the accused then removed 2 knives and stabbed her on the right thigh and right hand and upon seeing that the accused might harm her even more or even kill her, she gave in and the accused removed her clothes, applied the coconut oil on her vagina and anus then removed his clothes and he inserted his penis into her vagina and after he was done, he asked her to turn and he again inserted his penis into her anus. 10. Pw 1 then pleaded with the accused to have mercy on her since she was bleeding but the accused could not hear any of her pleas but while at it proposed to Pw 1 that he marries her and due to the pain she agreed and counterofiered to him to ensure he deal with her wounds and the accused agreed to apply some traditional medicine but she declined since her body would react and she proposed to him to take her for a tetanus injection and that the accused told her that no one should hear of what had transpired and he snatched her phone. 11. They then left to seek for medical assistance at Kipungani dispensary but found it was closed and the accused proposed that they should go to the nurse’s home. While the accused was locating her home, Pw 1 went to the sea shore and she saw 3 men and shortly thereafter the accused came and asked her what she was doing there but Pw 1 stated that she was not leaving unless he hands her back her phone and another struggle ensued and, in the process, the 2 men saw her wounds and they were shocked. One of them called the chief and when the accused saw the chief, he escaped. 12. She was then rushed to hospital for treatment and later reported the matter to the police and her statement taken. She identified the accused in the dock as the perpetrator asserting that she knew him well by virtue of being her uncle. 13. On cross examination by Mr. Njuguna, advocate, she reiterated that the accused was her maternal uncle and that at the time of the incident there were no people around and there were no neighbours and that it was happening for the first time despite being with the accused for 14 days or thereabouts. 14. Pw 2 the area assistant chief confirmed receiving a report from Pw1 about the incident of rape done on her by her uncle as well as the stabbing on her hand, thigh and stomach. He notified his superiors and he was advised to assist the victim get first aid and later she was referred to King Fahad hospital. He https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/58/eng@2026-01-29 2

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confirmed that the accused was arrested the following day and confirmed that he was aware the victim and the accused were in the same working place. 15. Pw 4 Dr. Kombo Mohamed Bwana produced the medical notes, P3 and PRC form. In his opinion confirmed that from the examination and the notes the victim was actually raped and got injured that led to her stitching and dressed and PEP medication was administered. From the P3 the cut wound was measuring 10 centimetres on the right thigh, on then hand it was measuring 5 to 7 centimetres and on the stomach measuring 5-7 centimetres and the degree of injury was indicated as harm. He further indicates that upon examination, a whitish discharge was seen and there was foul smell and Pw 1 complained of pain in the genital area. He concluded that the vagina had no bruises and laceration. Defence case. 16. The accused in his sworn testimony while denying the charges and/or any wrong doing on his part stated that on the material date he was watering trees and thereafter embarked on the assignment to construct the house for the chicken and he went to collect trees for the construction work and along the road he met 3 people and who started beating him up and took him to a standby boat and he was arrested and arraigned in court. 17. It was his testimony that Pw 1 lied about everything in that it is not possible that he stabbed her and she walked while bleeding. He also stated that he was not examined to prove that he had inserted his penis into the complainant’s vagina and most importantly that he does not even have power to erect following an accident he had in 2011 and as such there is no way he could have erected. B. Issue for Determination. 18. The following issue is in my view for determination in this matter; a. Whether the ofience of rape and assault were proven to the required standard. C. Analysis and Determination. a. Whether the ofience of rape and assault were proven to the required standard. 19. Section 3(1) of the Sexual Offences Act, 2006 sets out the ingredients of rape which the prosecution must prove:-A person commits the ofience termed rape ifa. He or she intentionally or 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. 20. The 3 ingredients have to be proved beyond reasonable doubt for the accused person to be found guilty of the ofience termed as rape. 21. As to whether the accused intentionally and/or unlawfully committed an act that caused penetration with his genital organs, it was the evidence of Pw 1the complaint that the accused came to where she was resting locked the door and after subduing her through causing an assault to her with a knife and seeing that her life would be in danger if she doesn’t cooperate, the accused applied some coconut oil to her vagina and anus and the accused inserted his penis into her vagina and thereafter into her anus. 22. These set of facts were not challenged by the accused who at the moment was represented by counsel and the cross examination evaded this line of evidence. To my view and given the precision within https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/58/eng@2026-01-29 3

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which the accused conducted the act, he penetrated not only the victim’s vagina but also her anus. This is further corroborated by the treatment notes that the victim was raped as the examining doctor saw a whitish discharge and also that there was presence of foul smell. 23. In addition, the PRC produced as an exhibit on examination of the 2 organs the accused is said to have penetrated, the examining doctor noted fecal matter around the anus and a brown dirt like matter along the minora fold but the P3 also notes a normal internal and external vagina. 24. Penetration has been defined to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person. I am thus satisfied that the prosecution through the testimony of the both the doctor and the victim proved that indeed the accused penetrated into the anus and the vagina of the victim and he did so intentionally since he was armed complete with lubrication oil in the name of coconut oil and he used force and he was prepared to do all it takes to ensure he accomplished his mission. The penetration was unlawful which ever way you look at it to the extent that the victim did not agree to it and also given the fact that the accused is her maternal uncle. This element is thus proved. 25. On the element of consent to the penetration and whether the consent was obtained by force or by means of threats or intimidation of any kind, it is the evidence of Pw 1 who testified that upon being ambushed by the accused in her room, she tried to escape but found that the door had been locked and the accused dragged her back to bed and when she was told that she must give him, she did not agree and that is when the accused removed 2 knives but only used one to infiict injuries to her thighs, stomach and hands and on seeing his persistence and for the sake of her safety and life she gave in and the accused undressed her and applied coconut oil to her vagina and anus and thereafter inserted his penis to both the vagina and anus. 26. From the narration from Pw 1, it is evidently clear that she never consented to the penetration and infact that there was a struggle between the 2 of them to a moment the accused used violence to obtain “consent” and this was for the sole purpose to avoid and/or stop further injuries and which for all intents and purposes cannot be said consent in its ordinary definition which should be free of any extraneous factors or infiuences. 27. I therefore hold and find that Pw 1 did not consent to the penetration and secondly that the consent was obtained by force and by means of threats or intimidation that resulted to actual violence and injuries sustained by the victim. The twin elements are in my view proved to the required standard. 28. The accused in his defence admitted to be at the scene(home) on the material day and that he was at the chicken house a fact corroborated by the evidence of Pw 1 but he despite the strength of the evidence against him, avoids addressing the occurrences in the house but states that he met some 3 men who beat him up and took him to a waiting boat and he was arrested. It is not naturally possible that people would just accost him in broad day light rough him up and arrest him for no apparent reason. I do find his defence lame, mischievous and of no probative value. It contains mere denials in a desperate attempt to avoid criminal liability. I thus dismiss the same. 29. There is no doubt as to the identity of the accused. The accused is well known to the accused by virtue of being her maternal uncle and the accused does not deny this fact. He was also positively identified in court. Undoubtedly, evidence of identification requires scrutiny to ensure that it is free from possibility of error, or mistake as pronounced by the court in Wamunga v Republic [1989] KLR 424 and the case of Ogeto v Republic [2004] KLR 19, where the court stated: “ It is trite law that a fact can be proved by the evidence of a single witness although there is need to test with the greatest care the identification evidence of such a witness especially https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/58/eng@2026-01-29 4

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when it is shown that conditions favouring identification were dificult. Further, the court has to bear in mind that it is possible for a witness to be honest but to be mistaken.” 30. It is true the evidence of identification of the accused was from a single witness and this is so because of the nature of the ofience that is rarely witnessed when it happens unless it’s the victim and the accused. With this in mind, I have no doubt in my mind that the accused was properly identified because other than being her maternal uncle, the conditions favoring identification were as easy as it can be in this sense, it all started with sexual stories what in this day and age we call fiirting between the accused and Pw1 and who were alone at the work place, a fact again confirmed by the accused. Secondly, it was during the day and the lighting was suficient and lastly there was a long interactions and conversation between the accused and the Pw 1 before and after the incident. 31. Having scrutinized the evidence of the complainant the sole eye witness, and the circumstances of lighting at the scene of the incident, the proximity at which the complainant saw the accused, and the length of time the complainant was with the Pw1 I am convinced beyond any measure of doubt that the identification was safe. 32. The accused further faces another count of assault. As discussed above, the accused had to assault the victim by occasioning cut/stab wounds to her thighs approximately 10 centimeters, right hand approximately 2 x 2.5centimeters and other places of her body. The injuries were classified as harm in the P3. The same were unlawful and intentional with a view of getting consent for his barbaric acts. 33. The accused in his defence never challenged this evidence on the assault and having dismissed his defence as mere denials and mischievous, I do find and hold that it is indeed the accused who assaulted the victim(Pw 1). 34. Having taken into consideration the prosecution evidence in toto as well as the accused person’s defence, I find that the accused person committed the ofience for which he is charged with. D. Conclusion and Disposition. 35. To this end therefore the charge of rape contrary to section 3(1)(a) and (c) as read with section 3(3) of the Sexual Offences Act No. 3 of 2006 has been proved to the required standards. 36. Further the ofience of assault causing actual bodily harm contrary to section 251 of the Penal code has also been proved to the required standards. 37. As the glove fits, I must, as I hereby do, convict the accused person accordingly in both count 1 and 2. Having convicted the accused person on the main count of rape, I make no finding on the alternative charge of committing an indecent act with an adult contrary to section 11(A) of the Sexual Offences Act. 38. It is so decreed. DATED, SIGNED AND DELIVERED AT LAMU LAW COURTS THIS 29TH DAY OF JANUARY, 2026. F.M. MULAMA RESIDENT MAGISTRATE In the presence of: Idris Tomno for DPP. Court Assistant:- Daniel Damise. JNM. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/58/eng@2026-01-29 5

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