[2022] KEHC 13501 (KLR)

JNN v Republic (Criminal Appeal E052 of 2021) [2022] KEHC 13501 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13501 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E052 of 2021

GMA Dulu, J

October 5, 2022

Between

JNN

Appellant

and

Republic

Respondent

(Being an appeal from the original judgment of Hon. J.D Karani in Makindu Principal Magistrate’s Court PM (S.O) Case No.50 of 2018 pronounced on 2nd July 2019)

Judgment

1. The appellant was charged in the magistrate’s court with incest contrary to section 20(1) of the Sexual Offences Act No 3 of 2006. The particulars of offence were that on July 7, 2018 at [Particulars withheld] Village, Kibwezi sub-county within Makueni County intentionally and unlawfully caused his penis to penetrate the vagina of AKM (name withheld) a female adult aged 70 years who to his knowledge was his grandmother.

2. In the alternative, he was charged with committing an indecent act with an adult contrary to section 11(1) of the Sexual Offences Act, the particulars of which being that on the same date and at the same place intentionally and unlawfully touched the vagina of AKM an adult aged 70 years.

3. He denied both charges. After a full trial, he was convicted under section 179 of the Criminal Procedure Code (Cap 75) of the offence of attempted rape, and sentenced to five (5) years imprisonment.

4. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal on the following grounds –1. That he was charged, convicted and sentenced despite his plea of not guilty.2. That the trial magistrate only considered the evidence of the prosecution side.3. That the offence of incest was fabricated on him.

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

6. As a first appellate court, I am duty bound to evaluate all the evidence on record afresh and come to my own independent conclusions and inferences. SeeOkeno –vs- Republic (1972) E.A 32.

7. I have evaluated the evidence on record. In proving their case, the prosecution called 4 witnesses. On his part, the appellant tendered sworn defence testimony and called no additional witness.

8. The appellant was charged with incest, but convicted of attempted rape. In my view, that was an error on the part of the trial magistrate, as the lesser cognate offence for incest would be attempted incest, and not attempted rape.

9. That error of the trial court herein, goes to the root of the conviction because firstly; the appellant was not able to defend himself on the offence of rape or attempted rape which he was not charged with thus violating Article 50 of the Constitution on the requirement of fair hearing. Secondly, there was already against him, an alternative charge of indecent act, for which the appellant was required to defend himself, thus the appellant could not have either the opportunity or chance to defend himself to another lesser cognate offence. It was thus prejudicial for the magistrate to change the charge substantially, at the point of judgment, without amendment of charge.

10. On the above account alone, the appeal will succeed.

11. Coming back now to the evidence on record both for the prosecution and the defence with regard to the charges on which the appellant was tried, I also find that the prosecution did not prove either incest, or an indecent act, against the appellant.

12. In this regard, evidence that connects the appellant to the alleged offense is that of Pw1 AK the alleged victim. I note that the incident occurred at 1:00 am at night though the charge sheet is drafted in a way that gives the impression that the incident occurred during the day. It was thus important for the trial court to have satisfied itself on the adequacy of positive visual identification of the culprit. See Wamunga –vs- Republic (1989) e KLR wherein the Court of Appeal emphasized the importance of the trial court satisfying itself that the visual identification is without error.

13. It is instructive to observe that though the alleged victim (Pw1) stated that she used a torch to light the room to identify the appellant, no evidence was tendered by the prosecution to show the type or whereabouts of that torch. The intensity of the light was not also described, thus leaving a doubt on the identity of the culprit.

14. More importantly, the evidence on record, both for the prosecution and the defence, was clear, that there existed a long standing disagreement between the alleged victim and the appellant, who were a grandmother and grandson, regarding the sale by the alleged victim of family land, the inheritance of the appellant. Again, a brother of the appellant M who was said by pw2 JK to ordinarily live in the same compound with the alleged victim, was not called by the prosecution to testify in court on whether he was aware of the alleged incident.

15. Further, the appellant was not arrested for this offence, but was already in police custody for an alleged traffic of touting offence, before he was charged with the present offence. Thus in my view, the appellant was not positively identified as the culprit.

16. In my view, with all the above factors taken into account, the evidence of the alleged victim regarding the identity of the culprit is rendered incredible, and thus not protected by the provisal to section 124 of the Evidence Act (Cap 80). As such, the evidence of the alleged victim of the sexual offence herein (Pw1) needed corroboration in order to support a conviction. Her evidence, not being so corroborated, cannot thus be relied upon to sustain the conviction. On that account also the appeal against conviction has to succeed. The sentence will also be set aside.

17. Consequently, and for the above reasons, I find merits in the appeal. I allow the appeal, quash the conviction and set aside the sentence. I order that the appellant be set at liberty unless otherwise held.

DELIVERED, SIGNED & DATED THIS 5TH DAY OF OCTOBER 2022, IN OPEN COURT AT MAKUENI................................GEORGE DULUJUDGE