[2022] KEHC 1302 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HCCRA NO. E026 OF 2020

ISAAC MATIBA MUHOORI…………………….……APPELLANT

-VERSUS-

REPUBLIC……………….…………………….…..…RESPONDENT

(Being an appeal from the original conviction and sentence of Hon. A. Ndungu in Makindu Senior Principal Magistrate’s Court Sexual Offence Case No.16 of 2018 pronounced on 12th May, 2020).

JUDGMENT

1. The appellant was charged in the magistrate’s court with rape contrary to section 3(1) (a) as read with section 3(3) of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that on 20th February 2018 at [Particulars Withheld] area of Nzaui Sub-County within Makueni County intentionally and unlawfully caused his male genital organ namely penis to penetrate into the female genital organ namely vagina of BMN (name withheld) without her consent a person who had mental disabilities.

2. In the alternative, he was charged with committing an indecent act with an adult contrary to section 11(a) of the Sexual Offences Act, the particulars of which being that on the same day and at the same place intentionally and unlawfully touched the vagina of BMN an adult using his penis without her consent a person with mental disability.

3. He denied both charges. After a full trial, he was convicted on the main count of rape, and sentenced to 10 years imprisonment.

4. Dissatisfied with the conviction and sentence of the trial court, the appellant has come to this court on appeal on the following grounds –

1. The prosecution case was replete with monumental inconsistencies and contradictions which should have attracted an acquittal.

2. That the trial court violated his rights to a fair trial.

3. That the trial court failed to accord adequate consideration to his defence.

5. The appeal was canvassed through written submissions. In this regard, I have perused and considered the written submissions filed by the appellant and those filed by the Director of Public Prosecutions.

6. This being a first appeal, I have to start by reminding myself that I am duty bound to examine the evidence on record afresh and come to my own independent conclusions and inferences – see Okeno –vs- Republic (1972) E.A 32, and Pandya –vs- Regina (1957) E.A 336.

7. In proving their case, the prosecution called 4 witnesses. Pw1 was the alleged victim who testified that she was aged 20 years and that on the material day she went to gather firewood in the bush whereupon the appellant pulled her into an area near the river and raped her and that a person who noted the activities alerted her mother who came to the scene.

8. Pw2 was CMthe mother of the victim whose evidence was that while doing her saloon work at [Particulars Withheld], a person called M phoned to inform her that someone was disturbing her daughter a 20 years old mentally disabled girl, and that she took transport from [Particulars Withheld] to [Particulars Withheld] a journey of about 30 minutes, and on going to the scene met Mutunga with an AP Officer, and also saw the victim walking slowly behind the appellant. It was her evidence that the appellant fled and was arrested later after the incident was reported to the police.

9. Pw3 was Antony Gitonga a Clinical Officer from Masimba Health Center whose evidence was that the victim was medically examined and treated. The victim had a medical registration card as mentally challenged, she had a missing hymen and lacerations in the labia majoraand labia minoraand bruises on right hand palm. He produced the medical report (P3 form) and other medical reports as exhibits.

10. Pw4 was PC Zena Jeruto formerly of Emali Police Station whose evidence was that a report was made to the Police Station on 22/2/2018 at 10am about the incident which allegedly occurred on 20/2/2018. She visited the scene, conducted investigations and charged the appellant with the offence.

11. When put on his defence, the appellant gave a long sworn defence testimony denying committing the offence and stating that BM fabricated the alleged offence against him because they had a dispute regarding two cows he had given M which M had claimed had died. He stated that on 20/02/2018 he went to where M was farming and found him with two other women. When he greeted M, he responded harshly, and the three started beating him and he thus ran away for his own safety, only to be arrested later at [Particulars Withheld] Club on 21/02/2018 at 6:30 pm and later arraigned in court for an offence he did not know anything about.

12. The first ingredient of the offence to be proved herein was the mental status of the alleged victim who was said to have mental disabilities. Though the victim Pw1 stated in her evidence that she had no mental disability, Pw2 her mother said that she was registered as a mentally retarded person. The medical evidence on same was identified in court, and the certificate of registration produced as an exhibit by Pw4 the Investigating Officer. I find that the prosecution proved beyond any reasonable doubt that the victim herein was registered and thus had mental disability.

13. The second element of the offence relates to consent to sexual act. Pw1 testified that she did not consent to sexual activity. She said that she was pulled to the river by the culprit and made to have sexual intercourse without her consent. I find that the prosecution proved beyond any reasonable doubt that there was no consent to sexual intercourse.

14. The third element of the offence to be proved by the prosecution beyond reasonable doubt was penetration of a sexual nature. In this regard Pw1 said that she was penetrated sexually. The medical evidence was that the hymen was missing, and that lacerations were noted in the labia majora and labia minora of the victim. In my view, the prosecution proved beyond any reasonable doubt that penetration of a sexual nature did occur.

15. The last element of the offence was the identity of the culprit. In this regard, the appellant denied committing the offence, and stated that M had implicated him falsely with this offence because of differences between them over two cows of the appellant which M could not account for. The defence of the appellant was on oath.

16. On the other hand, the prosecution evidence was that the incident occurred in broad daylight and that pw1 identified the appellant as the culprit. Pw2 also stated that when he went near the scene she saw the appellant walking ahead of the victim. The appellant himself admits that he was at the scene and claimed that he was beaten by M and two women and ran away.

17. Weighing the evidence of the prosecution against the defence, I find that the prosecution proved beyond reasonable doubt that the appellant was the culprit. The failure of the prosecution to call M as a witness was in my view adequately explained by the prosecutor who had made sufficient effort through phone calls, but could not trace him to come and testify in court.

18. Though the appellant claims that he was not accorded a fair trial, I find no evidence on record to show that there was any violation of the appellant’s right to a fair trial. I thus dismiss that ground.

19. The sentence imposed is lawful. I will not interfere with the sentence imposed.

20. Consequently and for the above reasons, I find no merits in the appeal. I dismiss the appeal and uphold both the conviction and sentence of the trial court.

Delivered, signed & dated this 22nd day of March, 2022, in open court at Makueni.

………………………………….

George Dulu

Judge