[2023] KEHC 26386 (KLR)

Gasi v Republic (Criminal Appeal E049 of 2021) [2023] KEHC 26386 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26386 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal E049 of 2021

DR Kavedza, J

December 8, 2023

Between

Robert Moiko Gasi

Appellant

and

Republic

Respondent

(Being an appeal against conviction and sentence delivered by Hon. E. Mulochi on 18th December 2021 at Kajiado Chief Magistrate’s Court Criminal case no. 15 of 2020 Republic vs Robert Moiko Gasi)

Judgment

1. The appellant was charged and after a full trial convicted for the offence of rape contrary to section 3 (1) (a) (c) as read with sub-section 3 of the Sexual Offences Act No 3 of 2006. He was sentenced to serve ten (10) years imprisonment.

2. Being aggrieved, he filed an appeal challenging his conviction and sentence. In his appeal, he challenged the totality of the prosecution’s evidence against which he was convicted. He also challenged the sentence as being harsh and excessive. He urged the court to quash his conviction and set aside the sentence.

3. As this is the appellant's first appeal, the role of this appellate court of first instance is well settled. It was held in the case of Okeno v Republic [1972] EA 32 and further in the Court of Appeal case of Mark Oruri Mose v Republic [2013] eKLR that this court is duty-bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that.

4. BK (PW1) testified that she met the appellant, who claimed to be a land broker and went with him to Kitengela. There, he bought her wine and meat and introduced her to people he said were his cousins. He delayed taking her home before the curfew, eventually driving her to Isinya, claiming to have a letter to pass through a roadblock. The appellant, who was drunk, lied about the letter and argued with people offering her a lift. Reluctantly, she returned to his car, and they drove towards Kitengela.

5. In a bush near Isinya, the appellant assaulted and threatened her, accusing her of wanting to sleep with his friends. He refused to let her go home. Seizing an opportunity near two motorbikes, she asked to relieve herself, but the appellant caught up, threatening her with a bottle. He then raped her. Afterward, he took her to a petrol station, paid for a room, and forced her to go with him. In the room, he raped her again before making her return to his car.

6. At a gate to [Particulars Withheld] house, the appellant falsely claimed PW1 was his wife. In Ngare's house, PW1 revealed the rape and assault to shocked individuals, including a man in a police uniform. The situation turned violent, with the appellant being restrained.

7. The following morning, PW1 called her sister, who, accompanied by police officers, took her to Kajiado Police Station. She recorded a statement and underwent examination and tests at Kajiado County Referral Hospital, receiving medication and instructions to get more from a pharmacy. She returned to the police station for further interrogation before going home with her sister.

8. Back home, she received a call from Sam, who had encountered her the previous day, offering to record a statement. PW1 provided Sam with the investigations officer's phone number. Despite Sam suggesting an out-of-court settlement, later on, PW1 declined. The appellant's alleged brother also called, apologizing and requesting a meeting, which PW1 refused, expressing her intention to go to court.

9. Later, she learned that the appellant had been apprehended. During cross-examination, PW1 denied demanding money from the appellant, clarifying that she met him to retrieve her money, secure an apology, and potentially connect with a client for a land matter. She strongly denied consenting to the alleged sexual assault.

10. HNM (PW2) informed the court that on May 1, 2020, around 10 pm, he was at his residence in [Particulars Withheld] Apartments, Kajiado, with his girlfriend, a friend named S, S's girlfriend, and a police officer named Bonny. During this time, the appellant called PW2, asking if he could join them. PW2 declined, stating he had visitors.

11. Approximately 20 minutes later, there was a knock on PW2's door, and upon opening it, he found the appellant accompanied by a woman (PW1). He allowed them into the house. About 30 minutes later, the appellant informed PW1 that they should leave. However, PW1 began to cry and revealed to PW2 and his friends that the appellant had raped and assaulted her.

12. Angry, the appellant attempted to assault PW1, but PW2 and his friends intervened to prevent further harm. PW2, to calm the appellant, took him to his bedroom. He asked B (PW3) to escort PW1 out of the house, which B did. PW2 continued to converse with the appellant, but he remained uncooperative. Shortly after, the appellant emerged from PW2's room, searching for PW1, who was not present. The appellant then left the compound in his car.

13. B (PW3) brought PW1 back to PW2's house, where she was made comfortable and allowed to rest. The next morning, using 's phone, she called her sister and recounted the events. Her sister, accompanied by police officers took her to Kajiado Police Station. PW2 recorded his statement on May 18, 2020.

14. On May 1, 2020, PW3, a prison constable, was on night patrol in Kajiado town. Around 11 p.m., he visited his friend PW2 at [Particulars Withheld] Apartments, finding him with S and two ladies, including PW1. The appellant arrived with a bottle of whisky and PW1. Despite PW1 being quiet, she suddenly began to cry and disclosed that the accused had raped her twice. The accused became furious and attempted to assault her, but PW3 and others restrained him. To calm the appellant, PW3 and PW2 took him to a bedroom.

15. Simultaneously, PW2 instructed PW3 to leave the house with PW1, and PW3 hid her in a temporary structure near PW2's residence. After about 20 minutes, the accused left the compound, and PW3 brought PW1 back to PW2's house, where she spent the night with plans to report to Kajiado Police Station the next morning. PW3 recorded his statement on May 15, 2020.

16. PW4, IM, PW1's elder sister, testified that on May 1, 2020, PW1 informed her she was meeting someone in Kitengela regarding business. PW4 cautioned her about the curfew and expected her back by 6 pm. At 7 p.m., PW4 unsuccessfully tried to call PW1, but she eventually received a call around 10 p.m. from a different number. PW1 mentioned going to a party with a friend but did not disclose the friend's identity. Earlier at 9 p.m., PW1 had requested her SIM card's pin, which PW4's house help provided.

17. On May 25, 2020, PW4 received a call from PW1 at 6 a.m., revealing she had been raped and needed assistance in Kajiado. PW4 contacted her other sister, and they separately headed to Kajiado. PW4 initially went to Kajiado Police Station, reported PW1's situation, and, with the police's help, located the house where PW1 was staying. They found her, and she informed them about the accused taking her phone and wallet. They proceeded to Kajiado Police Station, where statements were recorded.

18. PW1 later went to the hospital, and a cyclist brought her phone to the police station. During cross-examination, PW4 noted it was unusual for PW1 to attend night parties, and when she called, she sounded tense and out of place. Upon reaching Kajiado, PW1 was not found to be intoxicated.

19. Doctor Yakub Abdi (PW5) presented a P3 form and lab test results (exhibit two) related to PW1, whom he examined at Kajiado Referral Hospital after she reported being raped by someone known to her. Despite her age, he stated that it was possible for PW1 not to have sustained injuries in her vagina despite being raped twice.

20. Sergeant Catherine Kitiabi (PW6), the investigations officer, testified that on May 2, 2020, while at Kajiado Police Station, PW4 approached her. PW4 informed her that PW1 had reported being raped by someone known to her and was at a specific house in Kajiado. PW6, along with colleagues, went to the mentioned house owned by PW2, where they found PW1. They took her to the police station, and during interrogation, PW1 reiterated her earlier testimony.

21. Subsequently, PW6 visited Meru Petrol Station, recording a statement from one of the workers, though the worker declined to testify in court, citing job security concerns. The accused was later arrested and charged. After the close of the prosecution’s case, the appellant was found to have a case to answer and was put on his defence.

22. In his defense, the accused (DW1) stated that he initially met PW1 at the Kajiado Lands Registry, where she requested him to conduct a search for her. She agreed to pay him Kshs 1,000 for the task and waited in his car while he attempted the search, which proved unsuccessful. Following this, DW1 approached PW1, expressing interest in a romantic relationship. However, she insisted he complete the search before discussing any romantic involvement.

23. On the same day, DW1 took PW1 for lunch and dropped her at a bus stage in Kajiado. He promised to complete the search and send her the results. The search, spanning one week, remained unsuccessful as they couldn't locate the Green Card. PW1 requested a refund of the Kshs 1,000 she had paid, and after some resistance, DW1 agreed to refund her. Amid COVID-19 restrictions and a curfew, DW1 invited PW1 to a ceremony on March 30, 2020. They went to Kitengela, bought wine, and drove to Isinya. DW1 claimed to know a police officer who could help them bypass a roadblock. After the officer's assistance, they proceeded to a car wash in Kitengela, where DW1's friend (DW3) gave him Kshs 1,000 to buy meat. They bought wine, meat, and proceeded to have drinks in the car. Later, they drove to Meru Petrol Station, where DW1 paid for a room. While in the room, PW1 asked for money to pay rent, claiming unemployment due to COVID-19.

24. DW1 and PW1 then went to a friend's house in Kajiado (PW2's house) but encountered problems when PW1 demanded money. DW1, angered, took PW1 to PW2's bedroom. After leaving the bedroom, he couldn't find PW1 and PW3, another friend. He returned to the Restaurant, where he slept. The next day, he learned PW1 was with PW3 at Nyambene Restaurant. DW1 handed PW1's phone to a motorcycle rider to take it to PW2's house. Witnesses from Meru Petrol Station and Unique Car Wash testified, describing DW1 and PW1's interactions and demeanour during their visit.

Analysis and determination. 25. In his written submissions, the appellant challenged the totality of the prosecution's evidence, against which he was convicted. He submitted that he had consensual sex with the complainant and there was no evidence presented by the prosecution to the contrary. He maintained that the prosecution failed to prove beyond reasonable doubt the offence of rape.

26. Rape is defined under Section 3 of the Sexual Offences Act to mean, the intentional and unlawful penetration of a person's genital organ into another's genital organ without their consent. In R v Oyier (1985), KLR pg 353, the Court of Appeal held as follows:“The lack of consent is an essential element of the crime of rape. The mens rea in rape is primarily an intention and not a state of mind. The mental element is to have intercourse without consent or not caring whether the woman consented or not. To prove the mental element required in rape, the prosecution had to prove 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. Where 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.”

27. PW1 narrated that the appellant sexually assaulted her twice once by the roadside and in a lodging. This was after threatening to hit her with a bottle and threatening to harm her.It’s the complainant’s case that she did not consent to the sexual acts. According to the Proviso to Section 42 of the Sexual Offences Act,“a person is said to consent if he or she agrees by choice, and has the freedom and capacity to make that choice.”In Republic v Oyier [1985] eKLR, the Court of Appeal held as follows:-“The lack of consent is an essential element of the crime of rape. The mens rea in rape is primarily an intention and not a state of mind. The mental element is to have intercourse without consent or not caring whether the woman consented or not.”

28. To prove the mental element required in rape, the prosecution had to prove 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. The complainant maintained that during the ordeal she was scared for her life. Her testimony was corroborated by the evidence of PW5 who examined the victim after the ordeal. A high vaginal swab revealed spermatozoa and there were injuries. Accordingly, the prosecution proved that there was intentional and unlawful penetration of PW2’s genital organs without her consent.

29. On identification, the appellant was arrested and identified by the complainant and other prosecution witnesses. The perpetrator was a person known to the complainant as they had engaged previously in a land transaction. The identification was by recognition.

30. The victim's testimony and the medical evidence all pointed at the appellant as the perpetrator of the offence. This court finds that the appellant was positively identified as the perpetrator of the offences herein by the consistent, well-corroborated, and watertight testimonies of the prosecution witnesses. His conviction for the offence of rape was therefore proper.

31. On sentence, the appellant was sentenced to serve 10 years imprisonment. In the sentencing proceedings, the trial court considered the appellant’s mitigation. Section 329 of the Criminal Procedure Code, gives judges and magistrates, in appropriate cases to consider mitigation and mete out a sentence that fits the offence committed despite another sentence being provided for under the Act in which the offence is prescribed.

32. Therefore, the appeal on sentence partially succeeds. The sentence of 10 years imprisonment is substituted with a sentence of five (5) years imprisonment to run from the date of his conviction.Orders accordingly.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF DECEMBER, 2023. ______________D. KAVEDZAJUDGE