[2019] KEHC 3270 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

CRIMINAL DIVISION

CRIMINAL APPEAL NUMBER 102 OF 2017

BETWEEN

JOSEPH ONYANGO ODONGO......................................APPELLANT

AND

REPUBLIC......................................................................RESPONDENT

(Being an appeal from original conviction and sentence of 10 years imprisonment dated 8/9/2017

by Hon. F. M. Nyakundi, Resident Magistrate in Mumias SPMC

Criminal Case No. 7 (S.O.) of 2017)

CORAM: LADY JUSTICE RUTH N. SITATI

JUDGMENT

Introduction

The appellant herein, JOSEPH ONYANGO ODONGO was charged with the offence of rape contrary to Section 3 (1) (a) (b) (3) of the Sexual Offences Act No. 3 of 2006, the particulars thereof being that on the 23rd day of April, 2017 at about 4. 00 a.m. at [particulars withheld] Musanda location [particulars withheld] Division Mumias sub-county in Kakamega County he intentionally and unlawfully caused his penis to penetrate the vagina of M.A. without her consent.

In the alternative count, the appellant was charged with the offence of committing an indecent act with an adult contrary to Section 11 (1) (A) of the Sexual Offences Act, No. 3 of 2006, the particulars being that on the 23rd day of April, 2017 at about 4. 00 a.m. at [particulars withheld] Musanda location [particulars withheld] division Mumias sub-county within Kakamega County, he intentionally caused his penis come into contact with the vagina of M.A., against her will.

The appellant denied the charges therefore forcing the prosecution to call five witnesses to testify in support of its case. At the close of the prosecution case the appellant was found to have a case to answer and placed on his defence. The appellant gave sworn evidence by which he denied the charges against him. He did not call any witnesses.

Judgment of the Learned Trial Court

Upon careful analysis of all the evidence on record the Learned Trial Magistrate was satisfied that the prosecution had proved the charge of rape against the appellant. Consequently the appellant was found guilty as charged, convicted and sentenced to 10 (ten) years imprisonment.

The Appeal

Being dissatisfied with both conviction and sentence, the appellant exercised his right of appeal and filed this appeal which is premised on 8 (eight) grounds of appeal as follows:-

THAT the learned trial magistrate grossly erred in law and facts in taking the appellant through an unfair trial which did not meet the requirement of Article 50 (2) (g) (h) (j) of the constitution.

THAT the learned trial magistrate erred in law and facts in convicting and sentencing me as charged when the evidence of the prosecution disclosed the offence of incest.

THAT the learned trial magistrate gravely erred in law and facts in finding that the appellant was correctly identified without warning himself of the possibility of a mistaken identity.

THAT the learned trial magistrate erred in law and fact in failing to evaluate the circumstances at the scene which did not [prove] a positive identification free from error and doubt.

THAT the learned trial magistrate grossly erred in law and facts in placing reliance on inconclusive and doubtful medical investigations and evidence.

THAT the learned trial magistrate erred in law and facts when he failed to observe that the appellant was not medically investigated to determine among other things sexual activeness and corresponding findings.

THAT the learned trial magistrate erred in law and fact in basing my conviction on suspicions, fabrications and malicious evidence.

THAT the learned trial magistrate erred in law and fact in rejecting my defence thereby shifting the burden of proof on me.

It is appellant's prayer that the appeal be allowed, conviction quashed and sentence set aside.

As this is a first appeal this court is under a duty to observe the principles set out in the case of Okeno -vs- Republic [1972] EA 32 as well as the case of Mark Mose Oururi -vs- Republic [2013] eKLR. These principles require this court to reconsider and evaluate the evidence afresh and come to its own conclusions either by agreeing or disagreeing with the findings of the learned trial court or by rehashing the same. It is important to note that as an appellate court this court cannot take the place of the trial court which had the opportunity of seeing and hearing the witnesses during the trial.

The Prosecution Case

The complainant herein, M.A. who told the court she was about 100 years old testified that on 23/4/2017 at about 4. 00 a.m. she was asleep in her house when the appellant entered therein, apparently having gained entry through the roof. The appellant who was armed went to where PW1 was sleeping, tied her around the neck with a bed sheet, tied her legs to the shoulders and then raped her. After raping her PW1 bled. The appellant then took PW1's radio and box and also asked PW1 for money. The appellant whom PW1 said she knew then left.

PW1 went and reported the matter to the area sub-chief. PW1 later reported the matter to the police before she was taken to Butere district hospital for treatment. PW1 was stitched on her vagina because of the injuries she had sustained. PW1 identified the treatment notes and the P3 form issued to her by the police. PW1 also stated that the appellant raped her between 4. 00 a.m. and 6. 00 a.m. and that during these two hours, she was able to identify the appellant as Onyango. That the appellant had a torch which was very bright. She also stated that the appellant was very well known to her as he is also a grandson to her. PW1 also stated that her house was about 200 metres from appellant's house, and further stated that the appellant spoke to her in Kiswahili and that she clearly recognized his voice. During cross examination PW1 stated that the appellant had earlier on tried to rape another woman by the name N. She also stated that the appellant knew very well that she stayed alone, and that his (appellant's) criminal activities were well known in the village.

PW2 was number 1022 Sgt Nelson Waswa of Bungatsi police post. He testified that on 23/4/2017 at about 9. 30 a.m. he received PW1 at the police post when PW1 went to report that she had been raped by a person. She knew PW2 took PW1 to the health centre and also assisted her to have the P3 form filled for her on the 29/4/2017. It was also on the 29/4/2017 that PW2 arrested the appellant. PW2 testified that PW1 told him she had identified her assailant.

Number 46459 Police constable Amos Kiprotich testified as PW3. He was stationed at Lukongo patrol base. He testified that on 25/4/2017 at about 10. 00 a.m. he was at the office when PC Waswa and the complainant went to police patrol base and reported that PW1 had been raped by a person who was well known to her. PW1 gave him her treatment notes from Bungatsi health centre as well as those from Butere district hospital. He booked the report in the OB under reference No. [particulars withheld]. PW3 also issued PW1 with a P3 form which was filled and returned to him on 29/4/2017. According to PW3, PW1 did not give him the name of her assailant, but only stated that she knew the person. According to PW3, PW1 was about 70 years old.

Erick Lukaria a registered clinical officer working at Bungatsi health centre was PW4. He received PW1 at the health centre at about 10. 00 a.m. on 23/4/2017. PW1 had a history of having been raped by a person who was well known to her during the wee hours of that day.

On examination of PW1, PW4 made the following observations and findings. PW1's clothes were blood stained while her vagina was lacerated and also had blood. In his view PW1 had suffered a sexual assault.

PW4 referred PW1 to Butere district hospital for further examination. High vaginal swat carried out on PW1 at Butere district hospital revealed the presence of pus cells. PW4 also testified that PW1's external vaginal walls had bruises and also had blood on the genitalia. The conclusion of the examination according W4 is that PW1 had been raped.

In cross examination, PW4 stated that he was certain PW1 had been raped. PW4 however stated that he did not notice any stitches on PW1's vagina.

The last witness for the prosecution, PW5 was number 34796 Cpl Maurice Otieno of Mumias police station, gender desk. He testified that while he was at the office on 29/4/2017, PW1 went to the station and made a report of her ordeal. PW5 later recorded statements and collected exhibits. The PW1's blood stained clothes were produced as Pexh. 3, the knife was produced as Pexh. 4. Thereafter the appellant was charged. In cross examination PW5 stated that PW1's efforts to scream during the attack were futile because appellant threatened to kill her if she did that.

The Defence Case

At the close of the prosecution case, the appellant was put on his defence. He gave sworn evidence. He did not call any witnesses. He testified of his arrest on 29/4/2017 at around 6. 00 a.m. from his house, saying that at the time of arrest, the police did not explain to him why he was being arrested. He also testified that he was taken to court because he did not bribe the police. The appellant denied committing the offence and testified that on the material night he was in the house of his first wife EOO. The appellant initially indicated to the court that he wanted to call E as a witness, but he did not call her. Later in cross examination the appellant stated that the police found him with his first wife on the 29/4/2017.

Issues for Determination

From the wording of Section 3 (1) (a) and (b) of the Sexual Offences Act No. 3 of 2006, the prosecution must prove that there was penetration and that the act causing the penetration was both intentional and unlawful and that it was without consent. The prosecution also needed to prove that it was the appellant who committed those unlawful acts against PW1.

Submissions

The appellant filed his written submissions and contended that he was not positively and properly identified during the alleged crime, especially in view of the fact that the crime took place at 4. 00 a.m. and without any proper or adequate lighting and that in the circumstances, he should have been acquitted. The appellant also submitted that the evidence on record disclosed the offence of incest and not rape. The appellant also questioned the quality of investigations and urged the court to find that the evidence gathered during those investigations was not sufficient to support the charges against him.

The appeal was opposed on grounds that the evidence adduced by the prosecution proved the case against the appellant beyond any reasonable doubt. Mr. Juma, prosecution counsel urged the court to dismiss the appeal.

Analysis and Determination

From the evidence on record the law and the submissions, I find that the prosecution failed to prove the case against the appellant beyond any reasonable doubt. Although there was proof that there was penetration and that whoever committed the offence against PW1 did so unlawfully and intentionally and without PW1's consent, there is some doubt in my mind as to whether it was the appellant who committed the offence.

The evidence reveals that he offence took place in the wee hours of the morning on 23/4/2017. PW1's evidence as to whether there was any light by which she was able to identify/recognize the appellant was contradictory. In one moment, she said the appellant had a torch, which he apparently picked from the house and in the next breath she said she did not see the appellant with a torch. The Court of Appeal in Wamunga -vs- Republic [1989] KLR 424 was categorical that a court has to exercise caution when faced with the identification of a suspect under difficult and questionable circumstances. In my considered view, the circumstances under which PW1 alleged to have physically recognized the appellant were very difficult indeed. PW1 also said she recognized the appellant's voice, but this trajectory of evidence was not pursued to its logical conclusion. I would also like to add that the manner in which the trial court recorded the evidence leaves a lot to be desired, thus making it difficult for this court to follow the chain of the evidence as given by the witnesses and particularly by PW1. It is also worth of note that PW1 never gave the name of the appellant with her first report to the sub-chief, nor did she do so to the police.

Conclusion

In view of the above finding, I have reached the conclusion that the appellant's appeal has merit and is accordingly allowed. The conviction is hereby quashed and sentence set aside. This means that if there is no other reason of holding the appellant in custody, he is to be released therefrom forthwith.

Orders accordingly.

Judgment written and signed at Kapenguria.

RUTH N. SITATI

JUDGE

Judgment delivered, dated and countersigned in open court at Kakamega on this 9th day of October, 2019.

WILLIAM M. MUSYOKA

JUDGE