[2011] KEHC 451 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

CRIMINAL APPEAL NO. 14 OF 2011

(Appeal from the Judgment of the SRM’S Court Bondo inCR. CASE NO. 1608 OF 2009)

BENARD OCHIENG OKOMO :::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

-VERSUS-

REPUBLIC ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

JUDGMENT

This is an appeal emanating from the decision of SRM Bondo in Criminal Case No. 1609 of 2009. The appellant was charged with the offence of rape contrary to Section 3(1) as read with Section 3(3) of Sexual Offences Act No. 3 of 2006. The particulars were that on the 7th of October, 2009 at about 1 pm at L[...] in Rarieda District within Nyanza Province unlawfully and intentionally committed an act which caused penetration of his genital organ with M.A.an adult without her consent. The appellant faced an alternative count of Indecent Act with an adult contrary to Section 11(a) of the Sexual Offences Act No. 3 of 2006. The appellant pleaded not guilty. He was tried and convicted of the 1st count of rape and sentenced to 10 (ten) years imprisonment. Being dissatisfied with the judgment the appellant Benard Ochieng Okomohas preferred this appeal on the following grounds:-

1. That the learned trial magistrate erred in both law and facts notwithstanding that he was not tested by a doctor to prove the case against him beyond any reasonable doubts.

2. That the learned trial magistrate erred in both law and facts by failing to observe that the case was of recognition and would only be proved by recovered exhibit to show that there was some kind of struggle during the alleged incident.

3. That the learned trial magistrate erred in both law and facts by not observing that there were independent witnesses that would have been brought to court to prove the evidence that the appellant was with some other two people known to both complainant and witness.(sic)

4. That the learned trial magistrate erred in both law and facts by not observing that there were chances of ‘planting’ the heavy case on the appellant due to a grudge that existed between them.

5. That the learned trial magistrate erred in both law and facts by failing to evaluate the appellants alibi which was strong to secure an acquittal.

At the time of hearing the appellant submitted orally and also filed written submissions which may be summarized as follows; that the appellant was not tested after his arrest, meaning that the prosecution did not prove its case beyond reasonable doubt, the evidence relied upon was that of a single witness, independent witnesses were not called to testify and that there was a grudge between the appellant and PW1.

The prosecution side opposed the appeal on the grounds that; the appellant attacked and raped the complainant who was alone at the time of the commission of the offence; the complainant reported the matter to the police; upon being examined by a doctor, there was evidence of rape which corroborated the charge; that the trial court had warned itself of the dangers of relying on a single witness; and that the evidence before court was sufficient to warrant a conviction. Further that 10 years sentence was within the law.

This is the 1st appellant court and it is charged with the duty of reconsidering the evidence on record, examining and evaluating the same in order to arrive at an independent decision, bearing in mind that the trial court had the benefit to see and hear the witnesses and it ought to give an allowance for this. See Okeno V R (1972) E. A P 32.

In this regard I will consider the facts of the case as presented by the prosecution and evidence on record.

The brief facts of the case are that on the 7th of October, 2009 at about 1 pm the appellant in the company of 2 other men went to PW1’s house when PW2(complainant) was in the company of a lady whose hair she was plaiting. The other 2 men picked their fishing ware but left the appellant who stayed behind. The lady companion also left to go and prepare lunch leaving behind the complainant and the appellant. The appellant asked for water and when the complainant went into the house to fetch water, he followed her, he hit the cup of water, held the complainant, struggled with her, tore her panty and raped her, he thereafter left.

PW2the complainant M.A.stated in her evidence that 3 boys went to PW1’s house whereshe was, 2 left and the appellant was left behind. The lady companion also left. The appellant asked for water to drink, she went into the house but he followed her. He hit the cup, he held her by the neck and pushed her on her aunty’s bed. He tore her panty, removed her skirt, his short and penetrated her. He then left. She further testified that he did so without her consent.

PW1 R.A.stated that her neighbours daughter PW1 was left in the house to cook and prepare PW1’s child for School. Later she learnt from PW2that the appellant had raped her in the said house. When PW1went to the house she found things scattered and water spilled. PW1confronted the appellant who told her that PW2was his girl friend. Later that evening when she met the appellant he threatened to rape her. She said that the appellant was like her son.

PW3 P. C. Kibet Koechof Luanda Kotiende Police Post stated that on 7th October, 2009 PW2reported that she had been raped. He escorted her to hospital where she was examined by a Dr. Abuya later PW2and another officer P. C. Sioma visited the scene and managed to arrest the appellant.

PW4 Dr. Calvin Abuya,stated that heworked at Madiany District Hospital as a medical superintendent at the material time. That he examined the complainant following an alleged rape. He found that she had her monthly period. She also had bruises and tenderness around the chest. He examined her private parts and made an impression of defilement. He produced the P3 form as an exhibit.

The appellant was put on his defence. This is what he said; that on 2nd October, 2009 he went to his father’s land. He met PW1and they had an exchange. On 5th of October, 2009 they again met at the lake and PW2abused her. He was later arrested, taken to Aram and charged initially with the offence of defilement and later rape.

The issue for consideration is whether or not the complainant PW2was raped and if so whether indeed the assailant was the appellant herein.

PW2in her testimony maintained that the appellant grabbed her and had sexual intercourse with her against her will. There were no eye witnesses as is normal in most cases of sexual offences. I take note that there is always a danger in relying on the evidence of a single witness. However I also take note of the following; one the medical report of such a witness may corroborate the evidence; and

Secondly the trial court observed the demeanor of the witness, in his judgment the trial magistrate made the following observation:-

“ --- she stated that the accused tore her panty, removed her skirt and raped her. Though the panty wasn’t produce in court, her evidence appears truthful. She struck me as honest and credible witness and I have no reason to doubt her.”

From the record, the medical card of the complainant shows that she was attended to at Madiany at 5. 30 pm on the 7th of October, 2009 with a history of assault and rape by a person known to her. She had pain on the genetalia but no visible bruises.

On 8th October the medical card had the following observation; facial bruising and tenderness around the cheeks. On the physical state of area of the injuries to the genetalia, the doctor made the following observation:-

“Normal external genetalia. No tears or bruises.

There were no additional remarks or opinion made by the doctor on whether the victim had been raped or not.

In circumstances such as the one prevailing where there is the evidence of a single witness the medical report would corroborate the evidence of the witness as observed earlier.

In this case the P3 form does not corroborate penetration or indeed rape. The genetalia looked normal nor bruises or tear. No specimen was obtained from the complainant or the appellant. In my view there was nothing in the medical report to support the allegations or even link the alleged offence to the appellant. Indeed from the treatment card it is not obvious that the complainant was sexually assaulted. Although PW2appeared credible and honest to the trial court, in the absence of corroboration I find it unsafe to base the conviction solely on her testimony. I do not find that there was sufficient investigation by the police of the allegation and adequate evidence gathered to sustain a charge of rape.

It is the duty of the prosecution to prove its case beyond any reasonable doubt. Any doubt in the court’s mind must go to the appellant.

Having found that the charge of rape was not proved to the required standard, I have inevitably to accord the benefit to the appellant. In the circumstances I will quash the conviction and set aside the sentence.

The appellant is hereby set free unless otherwise lawfully held.

DATED AND DELIVERED THIS 27TH DAY OF OCTOBER, 2011.

ALI-ARONI

JUDGE

In the presence of:

………………………………………………………………..………… for State

………………….……….. Appellant present in person.