Can You Be Convicted of Rape Without DNA or Medical Evidence? Court Answers

The Court of Appeal has ruled that medical evidence is not mandatory to secure a rape conviction, maintaining the conviction and 30-year sentence of a man convicted of gang rape in Mandera.

In a judgment delivered on July 31, 2026, the Court of Appeal at Nairobi held that a rape case can be proved through the credible evidence of the complainant, even where medical evidence, DNA results or a doctor’s testimony is unavailable.

The case involved Tariq Abduwahab, who had challenged his conviction for gang rape under Section 10 of the Sexual Offences Act.

The case arose from an incident on September 25, 2019, in Mandera Central Sub-County.

The 19-year-old complainant, identified as N.T, told the trial court that she met Abduwahab and Ibrahim Adow Alio at about 8 pm as she went to buy airtime.

She said the two men held her and took her to a house they had rented. According to her testimony, Ibrahim held her down, stepped on her neck and covered her mouth to prevent her from screaming.

She told the court that Abduwahab then removed her clothes and penetrated her vagina twice without her consent.

“He did it twice,” she told the court, maintaining that she had not agreed to have sex with him.

The complainant further said Abduwahab threatened to kill her and throw her into a hole if she reported the incident.

She said Abduwahab’s uncle and aunt later arrived at the scene, prompting the two men to flee. The aunt gave her clothes after finding her naked.

The following morning, she was taken to the Chief before proceeding to Elwak Police Station after being examined at hospital.

Court: Medical Evidence Not Mandatory in Rape Conviction 

The Court of Appeal rejected Abduwahab’s argument that the absence of medical evidence made his conviction unsafe.

The judges held that rape can be proved through the oral evidence of the victim or circumstantial evidence.

The court relied on the principle in Kassim Ali v Republic, holding that the absence of a P3 form, DNA evidence or a doctor’s testimony does not automatically create a gap in the prosecution’s case.

The judges said a conviction can rest on the complainant’s evidence where the court carefully considers it and finds the witness truthful and credible.

In Abduwahab’s case, the court found the complainant’s evidence consistent and credible.

She positively identified and recognised Abduwahab, explaining that although the house was not lit, the two men used a torch which they placed on a table to illuminate the room.

The court also considered her conduct after the incident in assessing the credibility of her account.

Key Witnesses Failed to Testify

The prosecution’s case faced difficulties because several witnesses did not appear in court. Only the complainant testified.

The investigating officer, PC Kevin Wafula, and Dr Ali of Elwak Sub-County Hospital, who examined the complainant, failed to attend court despite being summoned several times.

A warrant of arrest was also issued against the investigating officer, but the OCS Elwak Police Station did not execute it.

The prosecution eventually closed its case without the evidence of the doctor and investigating officer after the trial court declined its final request for an adjournment on October 29, 2020.

The Court of Appeal, however, found that the absence of the witnesses did not automatically make the conviction unsafe. It noted that the complainant’s evidence was sufficient to sustain the conviction.

Forced Marriage Attempts

The court also considered evidence surrounding attempts to resolve the matter through traditional mechanisms.

During cross-examination, the complainant denied that Abduwahab was her husband or that she had agreed to withdraw the case and live with him as husband and wife.

She told the court that she had not married Abduwahab.

She also stated that Abduwahab had destroyed her mobile SIM card and that his aunt, Sahara, had taken her bag while planning a wedding between her and Abduwahab without her knowledge.

The court treated attempts to compromise the complainant through traditional Maslaha arrangements and force her into marriage as circumstances that counted against Abduwahab rather than supporting his defence.

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Abduwahab Denied the Allegations

In his defence, Abduwahab denied committing the offence. He told the court that the case had been “fixed on him”, meaning it had been fabricated against him.

He described himself as a poor orphan and maintained that he was innocent. He also claimed that he did not know the complainant and did not live with her in the same village.

The trial court rejected his defence and convicted him, sentencing him to 30 years in prison. The High Court at Garissa later upheld both the conviction and sentence.

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Court Upholds 30-Year Sentence

Abduwahab challenged the decision before the Court of Appeal, arguing, among other issues, that the lack of medical evidence made the conviction unsafe.

The Court of Appeal dismissed the appeal and upheld the conviction and 30-year sentence.

The court also held that Article 50(2)(p) of the Constitution could not be relied on to reduce the sentence because no lesser punishment had been introduced under Section 10 of the Sexual Offences Act between the time of the offence and sentencing.

It further noted that the Court of Appeal had no jurisdiction to consider a sentence on a second appeal, relying on the Supreme Court decision in Republic v Manyeso.

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A court hammer shared by the DPP to show the conclusion of a ruling. PHOTO/DPP.