PW1 and PW3 a wife and husband respectively, lived in the same house
with PW2. On the day in question at about 9.30 p.m. PW1 and PW3 were outside
the house chatting with friends. At about this same time PW1 retired to their
room. By 10.30 p.m. she was already fast asleep when she suddenly noticed
someone lying on top of her chest with his penis in her vagina and her hands
tied up. Since it was dark she could not recognize the person at the time. So,
she demanded the person to disclose his identity after which the response was
“I am Mhina Hamisi”. After saying so, the person set her free, went out while
PW1 pursued him holding the back side of his shirt and shouting “Jamani kuna
mtu Mhina Hamisi ameniingilia ndani na kunibaka”. While shouting and
holding the shirt they passed through a corridor which was moonlit. Neighbours
responded to the alarm after which the Appellant was arrested and later charged
in the District Court. PW1 was taken to hospital and a PF3 was filled in,
tendered and admitted in court as an exhibit. The PF3 showed that there was no
evidence of rape. The Appellant was charged with rape contrary to sections 130
and 131 of the Penal Code. The trial District Court convicted and sentenced the
Appellant to a term of imprisonment for thirty years. Aggrieved, the Appellant
made a first appeal to the High Court which upheld the conviction and the
sentence of 30 years but further sentenced the Appellant to corporal punishment
of six strokes of the cane. The Appellant appealed to the Court of Appeal