[2017] KEHC 801 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BOMET

CRIMINAL APPEAL NO. 4 OF 2017

GEOFFREY KIPRONO TANUI .…APPELLANT

-VERSUS-

REPUBLIC………………….….....RESPONDENT

(Being an appeal against both conviction and sentence in Criminal Case No. 1017 OF 2011 - PM’s Court Sotik - Hon Omwansa)

JUDGMENT

The appellant had been charged with the offence of robbery with violence Contrary to Section 296 (2) of the penal code.

In the 2nd count he was charged with rape Contrary to Section 3(1) as read with Section 3(3) of the Sexual Offences Act No. 3 of 2006.

The appellant was acquitted in respect to the first count of robbery with violence but convicted on the 2nd/Alternative count of rape.

On the count of rape he was sentenced to ten years imprisonment.

The particulars on the count of rape were that on the 19th day of January, 2010 at Bureti, committed an act which caused penetration with a woman namely L C N aged 32 years by inserting his penis into her vagina without her consent.

The prosecution called seven witnesses in support of their case. The defence called one.

This is the first appellate court. It has the duty of re-evaluating and re-considering the evidence on record so as to arrive at a just conclusion bearing in mind that it did not have the opportunity of observing the demeanour of the witnesses.

Brief facts

The complainant was on the 19th day of January 2010 on her way home from visiting her mother at Kapkatet Hospital. She realized that there was a man following her. This is what she told the court on the first paragraph page 3 of the record of proceedings “He caught up with me. He the slapped me. He pulled my lesso and tied my neck” with it. He fell me down. While on the ground I was crying. The person then asked me that I had not died. He told me he will stab me with a knife. He got out the knife and stabbed me on the side of my eye. I bled. He then raped me. When I kicked, I became weak upon which he raped. After finishing me he threw to me the lesso. He then told me to go home”.

The main issues in this case are:

1. Identification

2. Corroboration

3. The effect of failure to avail the complainant for cross examination by the Accused.

Identification

The appellant had been charged with the offence of robbery with violence on the first count and rape on the second count. He was acquitted on the first count of robbery with violence but found guilty and convicted on the 2nd count of rape.

From the evidence on record the incident took place at around 7. 00 p.m.

At paragraph 2 page 3 of the record of proceedings this is what she told the court. “I saw the person, it was about 7. 00 p.m. I saw the person very well. I knew him by his appearance but not name as I used to see him.”

At the last paragraph she states:- “I came to know him with the clothes he was putting on. They were green coat and green cap. The clothes of the Accused person were recovered at the scene.”

Richard Kimutai (PW2) testified to have been attracted to the home of the complainant from screams emanating therefrom. They followed the route the complainant had taken and down the river they recovered a blood stained head scarf and a thermos and a green marvin. They were handed over to village elders who called people to identify them. After identification the matter was reported to police.

The investigating officer testified that the matter was reported to him on 20/1/2010 at Litein Police Station by the husband of the complainant. The complainant was undergoing treatment at Litein Hospital. He further got information that the appellant had disappeared from his homestead. He was later arrested by APS form Kaptundo.

A perusal of the charge sheet indicates that the offence was committed on the 19th January 2010. The appellant was arraigned in court on 19th June 2012. There is no explanation as to why it took police close to two years before arresting the appellant.

It is instructive to note that the arresting officers were not availed in court to testify on the nature of the arres, time, place and circumstances surrounding that arrest.

There is evidence of recovery of several exhibits at the scene. These being a headscarf which was blood stained a thermos flask, and a green marvin.

According to PW2(R K) a child of PW1 identified the thermos flask as belonging to the appellant.

PW3 (John Ngetich) testified to have recovered a marvin cap at the scene. That the village elder called a meeting and it was identified as belonging to the appellant. A blazer stained with blood and mud was also recovered at the scene and the father of the appellant identified it as belonging to his son.

What transpires from the above is that the complainant was not in a position to identify her attacker at the time of the incident. It was dark. She was stabbed near the eye which bled profusely.

The source of light was not given. The circumstances obtaining at the time could not afford a positive identification of the attacker free from mistake or error.

If she had properly identified the attacker police would have been informed immediately and the attacker sought for purposes of arrest.

Instead, it was left on elders to try to convene meetings for purposes of identifying a headscarf, blazer, blue marvin among other items allegedly recovered at the scene. It’s as a result of this identification that the appellant was sought for and arrested.

These exhibits were not taken to police station and if they were, no action was taken on them.

Corroboration

From the above, the evidence of the prosecution witnesses was contradictory and disjointed. The complainant alleges to have identified the attacker but the evidence on record disproves her allegations. The evidence on exhibits is not relevant as same were not handed over to police and acted upon and produced in court.

Complainant not availed for cross –examination

It’s a cardinal principle of natural justice that aparty must face its accuser.

Article 50(2) K of the constitution provides: “Every accused person has the right to a fair trial which includes the right to adduce and challenge evidence.”

In this case the accused was not afforded the right to challenge evidence. This was fatal to the prosecution case.

I am satisfied that the prosecution did not prove this case beyond reasonable doubt. The appeal has merit and it succeeds. The conviction is quashed and the sentence set aside. The appellant is set at liberty unless otherwise lawfully held.

Judgement delivered dated and signed this 4th day of October 2017 in the presence of learned counsel for prosecution Mr. Barasa appellant present, court assistant Rotich.

M. MUYA

JUDGE

4/10/17