Incoming JSC Women Representative Ekaterina Handa: Medical Evidence Not Mandatory to Prove Rape, Court Rules

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 Incoming Judicial Service Commission (JSC) Women Representative Ekaterina Handa has welcomed the Court of Appeal’s recent clarification that medical or DNA evidence is not mandatory to secure a rape conviction where a complainant’s testimony is credible, consistent and compelling.

The Court of Appeal at Nairobi, in Abduwahab v Republic (Criminal Appeal E140 of 2023) [2026] KECA 1644 (KLR), dismissed a second appeal by a man convicted of gang rape and sentenced to 30 years in prison.

The three-judge bench comprising Justices P.O. Kiage, J. Mohammed and M.B. Kairaria held that a rape charge can be proved through the victim’s oral testimony or circumstantial evidence and that the absence of DNA or other medical evidence does not automatically render a conviction unsafe.

The court found the complainant’s evidence reliable and compelling, noting that her account of the assault was consistent and supported by her subsequent conduct. The appellant’s denial was found insufficient to displace her testimony.

The ruling also addressed the failure by the prosecution to call the investigating officer and examining doctor. The Court held that their absence was not fatal to the case because the complainant’s evidence was sufficient to sustain the conviction and the circumstances surrounding the missing witnesses had been considered by the courts below.

The Court further rejected the appellant’s reliance on Article 50(2)(p) of the Constitution, which provides for the benefit of a lesser prescribed punishment where applicable. It held that the sentencing provisions applicable to the offence had not changed and upheld the 30-year sentence.

The judges also took note of attempts to resolve the matter through Maslaha, a traditional dispute settlement mechanism, as well as efforts to have the complainant married to the appellant against her wishes. Such efforts did not provide a basis for overturning the criminal proceedings.

The decision reinforces the principle that survivors of sexual violence should not be denied justice simply because medical or forensic evidence is unavailable.

For Ekaterina Handa, the ruling underscores the importance of ensuring that the justice system remains accessible to survivors while maintaining the requirement for courts to carefully assess the credibility and reliability of evidence before reaching a conviction.

The Court of Appeal ultimately dismissed the appeal in its entirety, leaving both the conviction and 30-year prison sentence intact.

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