[2022] KEHC 13461 (KLR)

BM v Republic (Criminal Appeal E058 of 2021) [2022] KEHC 13461 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13461 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E058 of 2021

RPV Wendoh, J

October 6, 2022

Between

BM

Accused

and

Republic

Respondent

Judgment

1. The appellant, BM, has appealed against the judgment of the senior principal magistrate Migori, dated October 4, 2021. The appellant was convicted for the offence of rape contrary to section 3(1)(a)(b)(3) of the Sexual Offences Act. The particulars of the charge are that on May 25, 2021 at about 8:00 am at [particulars withheld] Uriri Sub County, intentionally and unlawfully caused his penis to penetrate the vagina of BA without her consent.

2. In the alternative, the appellant faced a charge of committing an indecent act with an adult contrary to section 11 (A) of the Sexual Offences Act. No finding was made on the alternative charge.

3. Upon conviction on the main charge, the appellant was sentenced to serve ten (10) years in prison.

4. The appellant is dissatisfied with the judgment of the court and preferred this appeal based on the following grounds:-1. That the offence was not proved; to the required standard;2. That the court failed to comply with article 50(2)(g) and (h) of the Constitution;3. That the court erred by failing to consider his defence;4. The court failed to consider that he was framed.

5. He therefore prays that the conviction be quashed, sentence set aside and the appellant be set at liberty.

6. The court directed that the appeal be canvassed by way of written submissions.

7. The appellant filed his submissions as directed by the court in which he reiterated the grounds of appeal and tried to findings why the complainants allegedly framed him and to find that no sex was not forced.

8. Mr Omooria, senior assistant director of public prosecution filed his submissions on July 22, 2022. He set out the ingredients of the offence of rape which are:-1. The offender intentionally and unlawfully causes penetration with his penis or her genital organs;2. The other person does not consent to the penetration;3. The consent is obtained by force or by means of threats or intimidation of any kind.

9. Counsel submitted that the appellant has not denied to having had sex with the complainant because he had inherited her as a wife after his brother died. It was counsels’ view that based on the fact that the complainant had been inherited as per the trial court’s finding, it was his view that there were signs of consent and hence there was no rape. He thus conceded the appeal on that basis.

10. As regards whether the court complied with article 50(2) (g) and (h) of the Constitution, counsel was of the view that the court complied with the said provisions.

11. This being a first appeal, it behooves this court to re-examine all the evidence tendered in the trial court, analyse it and arrive at its own conclusion. This court should however take to mind the fact that it neither saw nor heard the witnesses testify. I am guided by the decision of Okeno v Republic [1972] EA 32.

12. The prosecution called a total of three witnesses. PW1 JO, a clinical officer from Uriri Sub County Hospital examined the complainant on May 25, 2021 with a history of rape. He found blood cells in the urine, spermatozoa cells. On the genitalia, he found that the cervix was red in colour and the complainant was in her menstrual cycle; that the redness was due to inflammation or infection. He did not find any other injuries.

13. PW2 PC VN of Uriri Police Station recalled the May 25, 2021 when a report of rape was made at the police station by the complainant; that the complainant and the accused discussed the issue before the OCS and agreed to settle it as a family matter, as it was alleged that the appellant had inherited the complainant in 2018 but the complainant returned to the station with the same complaint and after statements were recorded, the appellant was charged.

14. The third witnesses (PW3) is BA who recognized the appellant as her brother-in-law. She stated that her husband died in 2018; that on May 25, 2021 while alone in the house watching TV, the appellant entered her house without knocking; that she stood up to take her phone to the bedroom and he followed her there, pulled her, struggling with her and overpowered her, forced her to bend and, he pulled up her skirt, removed her pant, removed his trouser and inserted his penis in her vagina and she screamed for help. She was on her period; that he then left and sat in the sitting room. She enquired why he raped her but he said nothing and went away. She informed her daughter J about it and her co-wife. She went to hospital and reported to Uriri Police Station. She denied having been in a relationship with the appellant or that he had inherited her. She said the appellant has been going to her house to disturb her. In cross examination, PW3 admitted that they had had sex with the appellant two times there before, on the path to her house and the one in the house was the third; that she informed the chief of the two other occasions. In re-examination, she claimed to have been raped three times but only reported this last time of May 25, 2021.

15. The accused was placed on his defence and testified as DW1. He admitted to having gone to the complainants’ house on May 25, 2021 and that they had sex and thereafter, she told him that he should tell the parents that they should live together. At about 1:00 pm he went to the trading center, he was informed that he had raped the complainant and was arrested. He claimed to have lived with the complainant for one year and that they had no grudge. He said that he did not want to tell the parents about the relationship with the complainant.

16. DW2 PM admitted to having had a discussion over this issue and they failed to reach a solution. He said that the appellant had inherited the complainant and the complainant alleged that the appellant had raped her. He stated that appellant and complainant loved each other.

17. DW3 JL, the appellant’s brother, stated that the appellant inherited the complainant in 2018 after her husband who was his brother died and that they love each other. He heard of the complainant alleging that she had been raped; that efforts to settle the matter at home failed.

18. DW4 HS the appellant’s father and therefore the complainant’s father in law also stated that the appellant had inherited the complainant and that after the complainant made the complaint, efforts to reconcile them failed.

19. I have considered all the grounds of appeal, the evidence on record and the written submissions by the appellant and the prosecution.

20. It is the duty of the prosecution to prove beyond reasonable doubt, the ingredients of the offence of rape. Section 3 of the Sexual Offences Act provides for the offence of rape in the following terms:-'(1)A person commits the offence termed rape if-a)he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;b)the other person does not consent to the penetrations; orc)the consent is obtained by force or by means of threats or intimidation of any kind;(2)In this section the term ‘intentionally and unlawfully' has the meaning assigned to it in section 43 of this act;(3)A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.'

21. In the instant case, the appellant admitted that indeed they had sex with the complainant on the said date, penetration is not disputed. The only issue is whether there was consent. Section 42 and 43 (1) of the Sexual Offences Act are relevant as regards the issue of consent. They provide as follows: - 42. ConsentFor the purposes of this act, a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice.

43. Intentional and unlawful acts

(1)An act is intentional and unlawful if it is committed –a)in any coercive circumstance;b)under false pretenses or by fraudulent means; orc)in respect of a person who is incapable of appreciating the nature of an act which causes the offence.2)The coercive circumstances, referred to in subsection (1) (a)a)use of force against the complainant or another person or against the property of the complainant or that of any other persons;b)threat of harm against the complainant or another person pr against the property of the complainant or that of any other person; orc)abuse of power or authority to the extent that the person in respect of whom an act is committed is inhibited from unwillingness to participate in such an act.'

22. The appellant complained that article 50 (2)(g)(h) of the Constitution were not complied with. I have seen the record of the court and at page 3 thereof the court took time to explain to the appellant of his right to counsel under article 50(2)(g) which requires that an accused be informed of his right to counsel promptly. It was explained to him even before plea was taken.

23. As regards the right under article 50(2)(h) the right is not absolute, because counsel can only be availed to an accused at the state expense if it is demonstrated that substantial injustice may result. When informed that he had a right to counsel, the appellant stated that he was ready to proceed. Failure to be informed of this right does not render the proceedings a nullity.

24. No doubt lack of consent is an essential element of the offence of rape. This was described in Republic v Oyier [2008] eKLR. The court held that: -'It is primarily an intention and not state of mind. Thus the mental element is to have intercourse without consent, or not caring whether the woman consented or not: DPP v Morgan [1975] 61 Cr Appl. R 136 HL The prosecution must prove either that the complainant physically resisted, or, if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist; Archbold Criminal Pleading Evidence and Practice 40th Edn pp 1411 – 1412 paragraph 2881 and R v Harwood K [1966] 50 CR App R 56. So if a woman yields through fear of death or through duress, it is rape and it is no excuse that the woman consented first, if the offence was afterwards committed by force or against her will; nor is it any excuse that she consented after the fact.'(emphasis)

25. Where a woman yields to sex by threats of death or duress, it amounts to rape and it is no excuse that she consented first neither is it an excuse that she consented after the fact, it would still amount to rape.

26. In this case, the only question is whether PW3 consented to having sex with the appellant. The act happened between the two of them alone and we therefore have the word of the complainant against the appellant. I have keenly considered the appellant’s defence. Although he had testified that he had inherited the complainant and so did his siblings DW2, DW3 and his father DW4, they were not specific what the agreement between PW3 and the appellant was. Although DW1 said he had inherited the complainant, and that the complainant wanted him to tell the parents that they should live together and he had said he would try, later in cross examination however he totally contradicted himself and said 'I did not want to inform my parents about the relationship' His statement meant that what he had with the complainant was still a secret a total contradiction of what he told the court and what his witnesses told the court, that is, that he had inherited the complainant. If the relationship was a secret, then the issue of inheritance does not arise. So far, the appellant has not told this court any reason why the complainant could have framed him. He admitted he went to her house without permission and from what he has told the court, I am convinced that the appellant forced himself on the complainant and had sexual intercourse with her against her will. PW3 admitted that the same had happened twice before. This third time is when she made a report. Even after she was given time to try to reconcile with the appellant, she stood her ground. If it were true that PW3 wanted the appellant to live with her, that was the best chance to grant her the opportunity to live with him. I am convinced beyond any doubt that the appellant had carnal knowledge of the complainant without her consent. To the contrary, I do not agree with the trial court’s finding that the complainant had been inherited by the appellant. The fact of widowhood does not give a brother-in-law or any other person to forcefully claim rights over another.

27. Therefore, I am satisfied that, the offence of rape was proved to the required standard and the trial court arrived at the correct finding in convicting the appellant of the offence of rape. I affirm the conviction.

Whether the sentence was excessive: 28. Under section 3(3) of the Sexual Offences Act, the appellant was liable to a term not less than ten (10) years imprisonment upon conviction. The appellant was actually given the minimum sentence. However, given the fact that the court are moving away from mandatory sentences because such laws take away the court’s discretion; I will find that ten (10) years imprisonment for a first offender is on the higher side. I hereby set it aside and substitute the sentence with seven (7) years imprisonment. The sentence will commence on the date the appellant was sentenced on October 4, 2021. In the end, the appeal partially succeeds.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 6TH DAY OF OCTOBER 2022R WENDOHJUDGEJudgment delivered in the presence ofMr Omooria for the Respondent.Appellant present.Nyauke Court Assistant