[2022] KEHC 12874 (KLR)

Chemasaluk v Republic (Criminal Appeal 1 of 2020) [2022] KEHC 12874 (KLR) (12 September 2022) (Judgment)

Neutral citation: [2022] KEHC 12874 (KLR)

Republic of Kenya

In the High Court at Kapenguria

Criminal Appeal 1 of 2020

WK Korir, J

September 12, 2022

Between

Emmanuel Chemasaluk

Appellant

and

Republic

Respondent

(Being an appeal from the judgment (conviction and sentence) of Hon. L.G.G. Okwengu, RM, delivered on 17/1/2020 in Kapenguria PMC S.O. No. 3 of 2019, R. v Emmanuel Chemasaluk & Amos Psirma)

Judgment

1. The appellant, Emmanuel Chemasaluk, was in the first count charged with the offence of gang defilement contrary to section 10 of the Sexual Offences Act. The particulars were that on February 1, 2019 at [Particulars Withheld] village within West Pokot county having a common intention with Amos Psirma to penetrate the vagina of CD, a child aged 15 years, intentionally caused his penis to penetrate the vagina of CD.

2. Arising from the particulars in the first count, the appellant faced an alternative charge of indecent act with a minor contrary to section 11(1) of the Sexual Offences Act.

3. The appellant was in the second count charged with assault causing actual bodily harm contrary to section 251 of the Penal Code.

4. At the conclusion of the trial, the appellant was found guilty as charged in the first and second counts while his co-accused was acquitted. The appellant was sentenced to 15 years in prison for count 1 and 2 years in prison for count 2 with the sentences running concurrently.

5. The appellant appeals to this court on the grounds that he was convicted on contradictory testimony and unreliable expert evidence. He also faults the prosecution for failing to call crucial witnesses.

6. This appeal was canvassed by way of written submissions. Through submissions filed on July 4, 2022, the appellant submitted that the evidence of PW1 DC was inconsistent and contradictory and that the trial court erred in relying on the same to convict him. The appellant relied on the case of Richard Appella v Republic [1981] EA-CA 945 to argue that the evidence of PW1 should not have been admitted due to its contradictory nature. The appellant also took issue with the evidence of the medical officer which he termed as insufficient. He also submitted that the evidence of the medical officer did not directly link him to the alleged offence and the offence was therefore not established. Finally, the appellant submitted that the prosecution failed to call witnesses whom the complainant alleged saw her with him and those who allegedly rescued her. In conclusion, the appellant urged this court to allow his appeal and quash the conviction and sentence.

7. The respondent filed submissions dated March 10, 2021. The respondent submitted that the evidence adduced by the prosecution discharged the two ingredients of the offence of gang rape created under section 10 of the Sexual Offences Act. The respondent further submitted that all the elements of defilement were discharged by the prosecution and that the sentence passed by the trial court was within the law. The respondent consequently urged this court to dismiss the appeal and enhance the sentence.

8. The prosecution called six witnesses. PW1 C D testified that she was 15 years and on February 1, 2019while heading to the home of her sister, PW2 RK, she met the appellant and his co-accused. After entering a forest, the two followed her and asked her to have sex with them but she declined. They forcefully held her and the appellant penetrated her after tearing her pants and skirt. She raised alarm and people came to her rescue but did not find her attackers because they had escaped. She then proceeded to her sister’s place. The next day the matter was reported to the police and based on the description of her attackers the two were arrested. Her testimony was that the incident took place from 5. 00pm to 10. 00pm. She told the court that she was meeting the two for the first time on the material day.

9. When cross-examined by the appellant, the complainant testified that the clothes he was wearing on the material day is what sold him out. Further, that he was wearing the same clothes in court. In response to questions put to her by the appellant’s co-accused, the complainant stated that he subdued her and left her with the appellant. Her testimony was that the co-accused of the appellant even told the appellant to leave her alone.

10. PW2 RK told the trial court that on February 1, 2019at about 9. 00pm she was at home when she heard someone scream from the direction of the forest. Alongside a neighbor, one CN, they headed to the forest to check what was happening. On reaching the forest, they found her sister (PW1) naked while her clothes were torn. PW1 informed her of what had happened and described the people involved in the act. They took PW1 home and gave her some painkillers. The next day at 4. 00am, she went and reported the matter to Kenya Police Reservists (KPR) who arrested the appellant and his co-accused.

11. On cross-examination by the appellant, PW2 testified that the complainant described him by the clothes he wore on that day and the marks on the cheek and lips.

12. JK testified as PW3. She stated that she was the mother of PW1 who was 15 years old. She produced PW1’s birth certificate which confirmed her age. She further testified that on the day of the incident PW1 had left home for PW2’s place. The next day she received a call from PW2 informing her that PW1 had been defiled and the suspects had been arrested.

13. PW4 DKL, a police reservist, testified that on February 2, 2019 he was woken up by PW2, DM and KM who informed him that the sister of PW2 had been defiled by two people. They told him that one of the suspects wore gumboots and had scar marks on the chin and mouth. The reportees also pointed to him where the suspects had come from. He then proceeded to where the appellant and his co-accused stayed and upon being identified by DM who was the village elder, he arrested them and took them to Kabach police post. On cross-examination by the appellant, he stated that he effected the arrests based on the description given by PW2 and that no one in the village possessed the same features as the appellant.

14. PW5 police constable Eunice Achieng testified that on February 2, 2019she was assigned to investigate a case of gang defilement. She also testified that two suspects had been booked by PW4. She investigated the matter and established that the two had defiled PW1. On cross-examination by the appellant, PW5 stated that the torn skirt which the complainant was wearing on the date of the incident was before the court.

15. PW6 Dr Jotham Mukhola of Kapenguria county Referral Hospital testified that on February 4, 2019the complainant was attended to by his colleague Silas Kendagor who had since been transferred to another medical facility. His testimony was that the complainant was referred to the hospital on allegation of having been defiled by a person known to her. The patient had soiled and torn pants. On physical examination, there was tenderness on the neck and bruises on chin. There was also tenderness on the lower hip joint. The approximate age of injury was a few days and the probable object used was blunt. Vaginal examination revealed no bruises on the labia and cervix. There was a whitish vaginal discharge and the hymen was broken. The patient was 8 months pregnant. A high vaginal swab did not disclose any sperm. The patient was also HIV negative. He produced the P3 form for PW1 as an exhibit. On cross-examination by the appellant, PW6 testified that the patient had tenderness on the neck. He also stated that they only carry medical examination on patients and not accused persons.

16. In his defence, the appellant testified as DW1. His testimony was that on the date of the alleged incident he went home at 5. 00pm and took supper at 9. 00pm. He thereafter went to bed. The next day at about 5. 00am he was woken up by a police reservist who asked for Krop. When he told the officer Krop had not come back, he was arrested and taken to the police station. At the Station he met PW2 who demanded Kshs 69,000/= from him so that he could be released. He was later taken to court and charged with an offence he had not committed.

17. The question for the determination of this court is whether the prosecution established its case against the appellant. This being a first appeal, this court is required to subject the evidence adduced at the trial to fresh analysis in order to arrive at its own independent conclusions. In doing so, the court must take into consideration the fact that unlike the trial court, it did not have the benefit of hearing and seeing the witnesses testify in order to gauge their demeanour.

18. It is important to point out from the outset that the appellant and his co-accused were charged with the offence of gang rape contrary to section 10 of the Sexual Offences Act, 2006. The section provides that:“Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life.”

19. Looking at the wordings of the provision, it is clear that for a charge of gang rape to hold, the prosecution is required to establish the two limbs of the offence. Firstly, it must be established that the offence of rape or defilement was committed and secondly, that the offence was committed by two or more persons. As is expected of the prosecution in a case of defilement, it is required to prove penetration, that the victim is a child, the age of the child for sentencing purposes, and the identification of the perpetrator.

20. The trial record shows that the appellant was charged with another person with the offence of gang rape. In the judgment delivered on February 13, 2020, the trial court in acquitting the appellant’s co-accused held that:“Some doubt is cast on the intention and role of the 2nd accused person and subsequently find that the prosecution case against the 2nd accused was not proved to the required standard…The charges against the 2nd accused have not been proved to the required threshold and I therefore acquit the 2nd accused pursuant to section 215 of the CPC.”

21. The charge of gang rape collapsed the moment the co-accused of the appellant was found innocent. What the trial magistrate ought to have subsequently done was to proceed in accordance with section 3 of the second schedule of the Sexual Offences Act which provides for consequential amendments and repeals. The provision states:“3. (1)This paragraph amends the Criminal Procedure Code.(2)Section 184 of the of the Criminal Procedure Code is repealed and replaced with the following new section—“184. charge of rapeWhere a person is charged with rape and the court is of the opinion that he is not guilty of that offence but that he is guilty of an offence under one of the sections of the Sexual Offences Act, he may be convicted of that offence although he was not charged with it.”.(3)Section 185 of the Criminal Procedure Code is repealed and replaced with the following new section—“(b)with offences under the Sexual Offences Act;”(4)Section 186 of the Criminal Procedure Code is repealed and replaced with the following new section—“186. When a person is charged with the defilement of a girl under the age of fourteen years and the court is of the opinion that he is not guilty of that offence but that he is guilty of an offence under the Sexual Offences Act, he may be convicted of that offence although he was not charged with it.”.

22. Having found that the conviction for gang rape was erroneous, I will proceed to consider whether the evidence that was adduced at the trial established the commitment of any other offence by the appellant. Although the issue of the identity of the complainant’s attackers was a key issue, the trial magistrate did not allude to it in his judgement and neither did the appellant raise it in this appeal.

23. The appellant’s testimony was that he was not at the scene of crime at the time of the alleged offence and neither did he meet the complainant on the material day. His defence was never considered notwithstanding the fact that the appellant had raised the issue of his identification. The evidence of the complainant was that she was seeing the appellant and his co-accused for the first time on the date of the sexual assault. Her testimony was that she described her attackers and through the description her sister knew them. The next day her sister in the company of police reservists went and arrested the appellant and his co-accused.

24. The testimony of the complainant does not disclose that she identified the appellant after his arrest. PW4 who claimed to have arrested the appellant gave contradictory testimony on the issue of identification of the appellant. In his evidence in chief he told the trial court that a village elder who was present at the time of the arrest identified the appellant to him. However, in cross-examination he stated that he arrested the appellant based on the description given to him by PW2. The identification of the appellant was therefore hazy. Coupled with the sworn testimony of the appellant’s co-accused that he did not know the appellant or the complainant prior to the incident, the appellant ought to have been given the benefit of doubt. The identification of the perpetrator is a key ingredient of the offence of rape or defilement and a conviction cannot ensue where this element has not been proved.

25. Having established that one of the ingredients of the offence of defilement or rape was not proved, it would be difficult to find the appellant guilty of any other sexual offence. This position applies to the charge of assault causing actual bodily harm.

26. In summary, the appellant’s appeal has merit and the same is allowed. The conviction against him is quashed and the prison sentences set aside. The appellant is set at liberty unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED AT KAPENGURIA THIS 12TH DAY OF SEPTEMBER, 2022. W. KORIR,JUDGE OF THE HIGH COURT