[2011] KEHC 1829 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA

AT KITALE.

CRIMINAL APPEAL NO. 82 OF 2009 (CONSOLIDATED WITH HCRA NO. 81 OF 2009)

ERUPE NAPAO )

CHRISTOPHER EKEN ) :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT.

VERSUS

REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT.

(An appeal from the original conviction and sentence of T. Nzyoki – SRM in Lodwar Criminal Case No. 211 of 2009 delivered on 9th December , 2009. )

J U D G M E N T.

1. The 1st and 2nd appellants were jointly charged with the offence of gang rape contrary to section 10 of the Sexual Offences Act. The particulars of the offence states that on the 17th day of February, 2009 at Kakuma Refugee Camp in Turkana North District within the Rift Valley Province, jointly in association unlawfully and intentionally caused penetration of genital organs of R.N. a woman aged 30 years. The 1st and 2nd appellant pleaded not guilty, after trial, they were both convicted and sentenced to 25 years imprisonment.

2. Being aggrieved by the conviction and sentence, both appellants appealed; and the two appeals were consolidated during the hearing. The 1st and 2nd appellants have challenged the judgment of the learned trial magistrate on the grounds that the prosecution’s evidence lacked credibility because after the complainant was allegedly gang raped, she reported to her husband who did not take any action. Moreover, the evidence of identification was also faulted because the circumstances which prevailed were not conducive for a positive identification. It was further pointed out that the 2nd appellant allegedly mentioned the 1st appellant although there was no statement under inquiry thus the 1st appellant was convicted based on the evidence of an accomplish. The appellants also submitted lengthy their own self written submissions in support of this appeal.

3. The appeals were opposed; Ms. Bartoo, the learned State Counsel submitted that the decision of the trial court was supported by the evidence on record. The complainant was attacked at 3 p.m. It was during the day. She had ample time during the ordeal to recognize the appellants. When the complainant screamed and resisted sexual assault, the 2nd appellant stabbed the complainant on the left side of forehead. The two appellants’ gang raped the complainant and when they finished they run away. The complainant was able to report to her husband who working within K[...] area that she had been raped. The injuries sustained by the complainant were confirmed in the medical report. The State urged the Court to sustain the conviction and sentence.

4. This being a first appeal, this court is mandated to reconsider and re-evaluate the evidence before the trial court and arrive at its own independent determination on whether or not to uphold the conviction. In so doing, this court should bear in mind that it never saw or heard the witnesses and give due allowance for that. See the case of NJOROGE VS. REPUBLIC [1987] KLR 19. I now wish to set out, albeit briefly the evidence that was before the trial court which led to the conviction and sentence of the appellant. The prosecution’s evidence that led to the conviction of the appellant was principally led by R.N., PW1 who was also the complainant in this case.

5. PW1 testified that on 17th February, 2009, at about 3. 00 p.m. she was walking to her home after attending to her day’s business of selling charcoal at K[....][ town. When she reached the junction between K[...] 1 and K[...] 11 near a cemetery, she was accosted by the 1st and 2nd appellant. The 1st appellant held the complainant at the back while the 2nd appellant held her hands from behind. They carried the complainant to the bush and when she attempted to scream, the 2nd appellant drew a knife and ordered her to keep quiet. The complainant was stabbed on the right side of forehead and on the right thigh. The 2 appellants placed the complainant on a thorny and they gang raped her. Thereafter they walked away towards the refugee camp.

6. The complainant recollected herself. Her clothes had been torn and she was bleeding from the injuries inflicted by the two appellant and also the thorns from the thicket where she was raped. The complainant reported the matter to her husband who advised her to report the matter to one E. so that she could get money to go to hospital but she did not find E. so she spent the night at a neighbor’s house. The following morning the complainant’s husband met with her and while they were walking to a place called U[...] wa N[...] area, they spotted the 2nd appellant Chritopher Eken. PW2 testified that the complainant reported to him that she was raped by Christopher Eken and Erupe Napao. He reported the matter to K[...] police station but he was advised to take the complainant.

7. The following day, PW2 testified that he went to N[....] village to look for the appellant. On the way he met his wife and as they were going to U[...] wa N[...] village, they spotted the 2nd appellant who began to run away. PW2 ran after the 2nd appellant and apprehended him. The 2nd appellant confirmed that they raped the complainant with the 1st appellant. PW2 took the 2nd appellant to K[....] police station and continued to search for the 1st appellant. It was not until 7th March, 2009, when we located the 1st appellant at K[....]. They apprehended him and took him to K[....] police station. This matter was investigated by Cpl. Ann Wanjiru, PW3. She testified that on 18th February, 2009 the complainant came to the police station accompanied by her husband and the 2nd appellant. She reported that on 17th February, 2009 at about 3. 00 p.m. she was gang raped by the 2nd appellant. PW3 referred the complainant to Kakuma Mission Hospital for treatment.

8. PW3 interrogated the 2nd appellant and he confirmed that he was with the 1st appellant. The 1st appellant was also arrested in the help of PW2 on 7th March, 2009. The complainant was examined by Joseph Chebii Kaino, clinical officer based at Kakuma Mission Hospital. The complainant was referred to the hospital by the OCS Kakuma police station on 17th February, 2009. Her clothes were bloodstained and soiled. She had two deep cuts on the head. She had multiple cuts on the back and on the right and left side of the hands. The complainant also complained of having been raped and on examination of her genitalia, PW4 recorded that he found bruises on the labia majora and labia minora.

9. The two appellants were put on their defence. They both gave sworn statements of defence. The 1st appellant testified that while herding his goats sometime in February, 2009 he sustained injuries and decided to seek treatment at Kakuma. While at Kakuma he was looking for a friend when a motor vehicle stopped by the side and arrested him on allegations that he had stolen a camel but when he was taken to court he was charged with the offence of rape which he denied. The 2nd appellant testified that as at the time he was suffering from TB and he had lost his wife and sent the children to school so he was looking for work as a casual labourer in Kakuma. On 14th February, 2009, he saw a police motor vehicle pass by. The occupants asked for his name and then he was asked to board the motor vehicle and was placed in police custody. He was surprised when he was charged with the offence of rape which he denied.

10. The learned trial magistrate considered the above evidence. He was satisfied that the prosecution proved the case to the required standard. The defence by the 1st and 2nd appellant was found to lack credibility. The appellants were convicted and sentenced to 25 years imprisonment each.The issue for determination in this appeal as it was before the learned trial Magistrate is whether the prosecution proved the case against the appellants. I have re-evaluated the evidence before the trial court, against the backdrop of the defence offered by the appellants. Firstly, the appellants were not obliged to give a defence, however they opted to offer sworn statement of defence thus the court has to evaluate the defence as well.

11. I have noted in the 2nd appellant’s defence, he claimed in his defence that he was arrested on 14th February, 2009 when he had travelled to Kakuma to look for casual work. This is in sharp contrast with the evidence of PW1, PW2 and PW3. PW3 is the arresting officer; I do not see any justifiable reason why he would mislead the court that the 2nd appellant was arrested on 18th February, 2009 if indeed he was arrested on the 14th February 2009 even before the offence was committed. For this reason l agree with the learned trial magistrate that the defence by the 2nd appellant lacked credibility.

12. The complainant gave to PW2 and also PW3 immediately she made the first report the name of the 2nd appellant as one of the two people who gang raped her, he was arrested the next day and when he was taken to the police station both the complainant and PW2 were present. I am in concurrent finding with the learned trial Magistrate that the conviction of the 2nd appellant is without error as the complainant who was the victim of rape was able to identify her attacker; she was attacked in a solitary place, drugged into the bushes where she was raped. The ordeal took place during the day and she immediately gave the name of the 2nd appellant to PW2 and also to PW3 who received the fist report at the police station on the 18th February 2009

13. As regards the conviction of the 1st appellant, PW2 and PW3 said that his name was mentioned by the 2nd appellant. This was evidence by an accomplish which must be treated with utmost care. The principles to guide the court on how to deal with evidence of an accomplish have been settled in a long line of authorities by the Court of Appeal, Key among them is the case of;

Wanja Kamau Vs Republic {1965} EA 502 in which the East Africa Court of Appeal held;

“While a person who aids and abets the commission of a crime or assists the guilty person to escape punishment is always an accomplice, a person who merely acquiesces in what is happening or who fails to report a crime is not normally an accomplice but the weight to be given to such person’s evidence should vary according to the reason for the acquiescence; if the acquiescence was based on approval of the crime, the evidence should be treated as no better than that of an accomplice; if, however, the acquiescence was based on indifference, the evidence should be treated with considerable caution; but if the acquiescence was a result of fear then there is no reason why the evidence should not be relied upon.”

14. Apart from the 1st appellant having been an accomplish, that is going by the evidence on record by PW3, The 1st appellant was arrested on 7th March, 2009, I am of the opinion that the police should have mounted an identification parade for the complainant to identify her second attacker. My reservation is compounded by the fact that when the complainant made the first report to PW3 on 18th February 2009, she did not mention the name of the 1st appellant. This is the evidence of PW3

“I am the investigating officer on the 18th February, 2009 at about 11. 00 a.m. I was at Kakuma police station when one R.N. (PW1) came to the police station while in the company of her husband L.K. PW2 and Christopher Eken the 2nd accused person. She reported that on the 17th February, 2009 at about 3. 00 p.m. she was from Kakuma Refugee Camp on her way home and when she reached the N[...]Community Area two men appeared, caught and dragged her to a neighbor where she was raped. She told me that Christopher Eken the second accused person was one of the men who raped her … In the course of interrogation the said accused person mentioned the first accused person”.

15. Going by the above evidence, there is doubt whether the 1st appellant was properly identified. For that reason the appeal in respect of the 1st appellant succeeds, the conviction is quashed and the sentence of 25 years is hereby set aside. As regards the appeal by the 2nd appellant, the appeal lacks merit, it is hereby disallowed. The conviction and sentence are to remain in force.

Judgment read and signed on this 3rd day of June, 2011.

MARTHA KOOME.

JUDGE.