[2022] KEHC 3063 (KLR)

EO & 2 others v Directr of Public Prosecutions (Criminal Appeal 2 of 2019) [2022] KEHC 3063 (KLR) (18 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3063 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal 2 of 2019

WM Musyoka, J

May 18, 2022

Between

EO

1st Appellant

Elvis Lusimba

2nd Appellant

Eugene Barasa

3rd Appellant

and

Directr of Public Prosecutions

Respondent

(From original conviction and sentence in Kakamega CMCCRC No. 137 of 2018, Hon. E. Malesi, Senior Resident Magistrate, of 27th may, 2019)

Judgment

1. The three appellants herein were charged, jointly with others, of the offence of gang rape, contrary to section 10 of the Sexual Offences Act, No. 3 of 2006. The offence was allegedly committed on August 23, 2018 at [Particulars Withheld] on PK, aged sixteen years, through penetration of his anus by the penises of the appellants.

2. When the charge was read on November 14, 2018, the 1st appellant, EO, pleaded guilty, and was sentenced, on December 13, 2018, to serve two years’ custodial sentence, which was to run after the lapse of the sentence that he was serving.

3. The 2nd and 3rd appellants pleaded not guilty to the charges, and a trial was conducted. Five witnesses were heard, and the court found the two had a case to answer, and they were put on their defence. They testified on oath in defence. Eventually, they were convicted on May 23, 2019, and were sentenced to serve fifteen years’ imprisonment.

4. All three appellants were aggrieved by their convictions and sentences, and lodged appeals, being Kakamega HCCRA Nos. 2, 61 and 62 of 2019. The three appeals were consolidated on March 4, 2020.

5. In his appeal, the 1st appellant pleads that he did not understand the charge and the implications of pleading guilty to it, he was not warned of the consequences of pleading guilty, he was tortured by the police and forced to plead guilty, he was beaten after his arrest and was not in his right senses, and the court failed to find that he is underage.

6. On their part, the 2nd and 3rd appellants pleaded that the evidence on penetration was flimsy, and the evidence in general was contradictory inconsistent and uncorroborated, did not meet the threshold of section 36 of the Sexual offences Act and that the burden of proof was shifted to them.

7. I will deal first with the appeal by the 1st appellant. In his written submissions, he says the charge was read in Kiswahili, and no Advocate was assigned to him. According to the trial record, the charge was read in Kiswahili. The trial court did not record whether or not Kiswahili was a language that the 1st appellant understood, but then in mitigation, the 1st appellant submitted that he was in Form 2. I take judicial notice of the fact that Kiswahili is a compulsory subject for public schools in Kenya, and, that being the case, it cannot be true that the 1st appellant was not conversant with it, to the extent of not understanding the charge.

8. On whether he should have been assigned an Advocate, I note that he was charged as a minor, and the trial court should have considered that, but in the end I am not persuaded that it was fatal to the prosecution. The charge was read to the 1st appellant, and he pleaded to it in a straightforward manner. The facts were read out, and he confirmed them. There is nothing to show that he was prejudiced in any way.

9. He has raised the issue of the sentence of fifteen years’ imprisonment. The record before me indicates that those who pleaded guilty to the charges, including the 1st appellant, were sentenced on December 13, 2018, to serve two years’ custodial time at Shikusa. The sentence of fifteen years’ imprisonment was imposed on the 2nd and 3rd appellants, who had pleaded not guilty. That was done on May 23, 2019. They had attained maturity by then. That sentence did not apply to the 1st appellant. His arguments against sentence are, therefore, misplaced.

10. On being forced to plead guilty, and of being assaulted after his arrest, I have no proof of that. That was an issue that should have been raised on arraignment on November 14, 2019. The 1st appellant had a chance to raise the same. He did not. I have no basis to revisit the matter when I have no proof or evidence of the same.

11. Regarding the appeals by the 2nd and 3rd appellants, on the claim that there was no evidence of penetration, I note that PW1, the complainant, gave very clear evidence, which was very clearly recorded by the court, about how the appellants, in turns, removed their shorts and took out their penises, and inserted them into and penetrated his anus. He said that that happened on October 24, 2018. PW5 was the clinical officer who treated PW1 on 26th October 2018. She confirmed that the anus of the PW1 had been penetrated. There was, therefore, sufficient evidence of penetration, contrary to the submissions by the 2nd and 3rd appellants.

12. On evidence being flimsy, contradictory, inconsistent and uncorroborated, I have carefully gone through the testimonies of all the prosecution witnesses, and I find the same flowing and consistent. The evidence of PW1 was corroborated. He claimed to have been penetrated, and that claim was corroborated by the medical evidence presented by PW5. There was also corroboration from PW2, PW3 and PW4, the officers to whom he reported the matter after the incident, and to whom he revealed what had befallen him, and who took steps to have him medically examined. The evidence before the trial court was, therefore, consistent, well-founded and corroborated.

13. On section 36 of the Sexual Offences Act, which provides for forensics for the purposes of sexual offences, the law is that section 36 is not in mandatory terms. There is no requirement that deoxyribonucleic acid (DNA) tests must be done on both the victim and the alleged perpetrators in order to establish connection between them. The court can, in defilement cases, convict on basis of other evidence, particularly that of the victim, if it finds it reliable and believable. The trial court found that evidence to be reliable and credible, and proceeded to convict based on it, in absence of forensics. See Fappyton Mutuku Ngui v Republic [2014] eKLR (Kihara Kariuki (PCA), Maraga & J. Mohammed JJA), AML v Republic [2012] eKLR (Odero J), Kassim Ali v Republic [2006] eKLR (Omolo, Bosire & Githinji JJA), George Muchika Lumbasi v Republic [2016] eKLR (Mwita J), Robert Mutungi Muumbi v Republic[2015] eKLR (Makhandia, Ouko & M’Inoti JJA) and Williamson Sowa Mbwanga v Republic [2016] eKLR (Makhandia, Ouko & M’Inoti JJA), among others.

14. On the burden of proof being shifted to the appellants, I have not found any incidence of that from the record. The prosecution adduced sufficient evidence to convict the 2nd and 3rd appellants for the offence, and the trial court did not shift the burden of proof to them at any stage.

15. Overall, I have found no material evidence upon which I can upset the findings of the trial court in this matter. Consequently, it is my holding that the appeals herein have no merit and they are hereby dismissed. The convictions are upheld and the sentences confirmed.

16. It is so ordered

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 18TH, DAY OF MAY , 2022W MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Mwangi, instructed by the Director of Public Prosecutions, for the respondent.EO, the 1st appellant, in person.Eugine Barasa, the 2nd appellant, in person.Elvis Lusimba, the 3rd appellant, in person.