[2023] KEHC 25663 (KLR)

Kanyi v Republic (Criminal Appeal E083 of 2022) [2023] KEHC 25663 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25663 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Appeal E083 of 2022

A. Ong’injo, J

November 21, 2023

Between

James Kanyoro Kanyi

Appellant

and

Republic

Respondent

(Being an appeal against conviction and sentence by Hon. David O. Odhiambo (SRM) on 30th September 2022 in Shanzu Senior Principal Magistrate’s Court S. O. Case No. 116 of 2020, Republic v James Kanyoro Kanyi)

Judgment

Background 1. James Kanyoro Kanyi was charged with the offence of rape contrary to Section 3(1)(a)(b)(3) of the Sexual Offences Act No. 3 of 2006.

2. The particulars are that James Kanyoro Kanyi on the 15th day of September 2020 in Kisauni Sub-County, Mombasa County intentionally and unlawfully caused his penis to penetrate the vagina of P.F. a girl aged 19 years old.

3. The trial magistrate considered the evidence of the 4 prosecution witnesses and the and the defence evidence and convicted the appellant who was sentenced to serve 10 year-imprisonment.

4. The appellant was aggrieved by the conviction and sentence and he preferred the appeal herein on the following grounds: -1. The learned trial magistrate erred in both law and fact in relying on the evidence of the prosecution witnesses to convict the appellant when the said evidence contained numerous material contradictions which were fatal to the prosecution case.2. The learned trial magistrate erred in both law and fact in failing to appreciate that the prosecution evidence was inadequate and did not meet the required standard of proof.3. The learned trial magistrate erred in both law and fact in not analyzing or addressing the evidence of the appellant and the defence evidence and thus denied justice to the appellant.4. The learned trial magistrate erred in law in convicting the appellant in the absence of the required standard of proof.5. The judgment of the court was contrary to the weight of all the evidence on record.6. The conviction and sentence were unmerited.

5. The Appellant prayed that the appeal herein be allowed, the conviction and sentence be set aside and he be set at liberty. The Appellant filed written submissions to that effect.

Prosecution’s Case 6. PWI, P.F.M. the complainant herein said that she knew the appellant who was her former boss where she worked in his Mpesa and cosmetics shop in July 2020. She testified that on 15th September 2020, she did not go to work as she had gone to Kazi Kwa Vijana Programme and at 5. 00 pm, the appellant called to take his phone and keys. She said that the appellant’s house was closer to the shop and she entered the appellant’s house and handed over the phone and keys. However, as she was walking out of the house, the appellant held her hand, pulled her back and threw her on the bed. That he tore her clothes, removed her panty and raped her. That she escaped from the house, went home but did not find her parents and went to her friend’s home.

7. PW1 said that when her friend B saw that she was not fine, he inquired what had happened and she explained to him what had happened. That B informed his mother and sisters as well as the complainant’s mother. The complainant said she took some drugs and she was taken to a private hospital and later to Coast General Hospital. Treatment note and PRC Forms were identified by the complainant and later produced by the doctor PW2. The complainant said that she was not in a relationship with the appellant and that the appellant had accused her of stealing from him and she paid him.

8. In cross examination, she said that she had never sent her photo without a buibui to the appellant. She said that she used to be in charge whenever someone was washing clothes or doing repairs for the appellant. She said it was not the first time she was going to the appellant’s home. She said she had gone there three times when he was not there. She said she had never cooked food in the appellant’s house. The complainant said that she gave the torn dera and panty to the police after she had recorded her statements. She said that she could not remember the name of the first hospital that she was taken to or even the date she was taken to Coast General Hospital where she was admitted as she was in a bad condition and unconscious following the rape and the drugs that she had taken.

9. PW2, Dr. Fatuma Ahmed, produced a P3 Form filled on 1. 10. 2020 by Dr. Wafisa who examined the complainant herein for the offence of rape by a person well known to her. The doctor assessed degree of injury as maim as the complainant’s hymen was broken with vaginal abrasions. It was found that the case was rape and attempted suicide. That the incident occurred at the employer’s place in Mshomoroni and upon being raped the complainant wanted to commit suicide. That penetration caused hymen to break and abrasions were fresh.

10. PW3, FMM , learnt that his daughter had been raped by her employer when she took his phone to his house. He took information from his cousin B and together they went to the accused person’s home to ask what had happened and the accused was not able to answer and he looked worried. That when the accused person could not answer, he called neighbours who helped to drag him to where the complainant was and they found her lying unconscious outside the home of B. He took the complainant to the police station and to Coast General Hospital where she was admitted and the complainant was arrested and taken to the police station. PW3 said he used to see the accused person in the neighbourhood and he had never disagreed with him.

11. PW4, PC Kennedy Onderi, the investigating officer from Mjambere Police Station investigated the rape case that had been reported on 15. 9.2020 where the complainant said she had been raped by the appellant who was her boss. He said that at the time when he took over the matter on 15. 9.2020, he found the appellant had already been arrested and he took statements of the witnesses. Thereafter he arranged for the P3 Form to be filled. PW4 produced a torn dera that had been handed over to the OCS as one that was being worn by the complainant at the time of the incident. He produced it as Ex P4.

Defence Case 12. When the accused person was placed on defence, he said that on 15. 9.2020, he was at home the whole day and at 6. 00 pm, the family of the complainant went and asked what he had done to the girl. That they went and started beating him. He said that the complainant had not gone to work on the material day as he had told her about a shortage of money at the shop. He said the complainant showed him her ID that she was 18 years and was not going to school. He also said he never had sex with the complainant and was not taken to hospital after being beaten. He said that the family of the complainant wanted to be paid for the case not to be brought to court.

13. On cross examination, the accused person said that the complainant used to work for him half day and that she would work either from 8. 00 am to noon or from noon to 8. 00 pm. That the complainant kept keys to the shop and that the shop was not far from the accused’s house. That there was shortage of money and the accused informed the complainant about it. He said that on the material day, he was at the shop and that he was also with a neighbour who is a teacher. The accused said that the complainant had gone to look for money from kazi mtaani. He said that he never told her that he wanted a relationship with her, he never told her that he loved her, he did not touch her in any way, and he had no issues about her dress code.

14. DW2, Nyamula Dzombo said that on 15. 9.2020, she went to the shop to buy soap and she found the accused who told her there was no soap. That he told her to go back later after the arrival of his worker. That when she went back later, he said that his worker did not report so he never went to town. That later, DW2 heard noise from his shop and when he went there, he found him being beaten and he was arrested by the police.

15. DW3, Amos Muthaya said that the accused was his friend and that he used to repair his computer. That on the day of the incident, the accused called him to his shop to repair his computer and left at 4. 00 pm. That when he went back at 7. 00 pm, he found him being beaten but he did not ask what was happening as they were police officers. DW3 said that when he went to the shop at first, the accused was with one worker.

16. DW4, Joseph Karafu said that on 15. 9.2020, he went to work as usual then passed by the accused’s at 4. 30 pm to ask for the money that the accused owed him. That the accused told him that he did not have money at the time and told him to go back later. That when he went back, he found people gathered at his place and that DW4 was told that the accused was being beaten and the police went and took him.

Appellant’s Submissions 17. The appellant submitted that B was the first person who saw the complainant after the alleged rape ordeal. That he received first-hand information from her about the incident and was able to decipher the physical and mental state of the complainant before ingesting drugs. That he was also the one who told the complainant’s parents about the rape ordeal and his testimony would therefore have been crucial to establish the truth. The appellant relied on the case of Samuel Ogola Opondo v Republic (2018) eKLR on the duty of the prosecution to call crucial witnesses. The appellant also cited Section 124 of the Evidence Act on corroboration required in criminal cases.

18. The appellant argued that there were glaring inconsistencies in the testimony of the complainant. For instance, that she insisted she was 17 years old yet at the time of commission of the alleged offence she was 19 years old, that the exact time the rape incident occurred was around 5. 00 pm yet in the P3 Form it is indicated that the incident occurred at 7. 15 pm, that the complainant alleged that she was a student at Mugenzeni Secondary School yet she did not avail any document purporting that she was indeed a student at the said school, that she gave police officers at Junda Police Station the torn dera and panty as proof that consent was not obtained but in both PRC Form and P3 Form it was stated that she did not present any clothes to the police, and the complainant was not sure when and the time the P3 Form was issued.

19. The appellant contended that PW3 during cross examination stated that he got home at around 6. 45 pm and got to know his daughter was raped at 7. 00 pm but he did not know the exact time that she was raped. That even particulars of the charge sheet do not indicate the exact time that the complainant was raped. The appellant submitted that it can be deduced that the complainant was not truthful in her testimony.

20. The appellant submitted on whether the ingredients of rape were proved by citing the cases of Kelvin Yegon alias Hillary & Another v Republic (2021) KLR and Republic v Francis Otieno Oyier (1985) eKLR on the elements of the offence of rape and pointed out that he who alleges must prove. He stated that the complainant has not satisfactorily proved that there was lack of consent. He argued that the trial court allowing the production of the torn dera which was marked as Ex P4 was never presented to the said police during investigations of the case which greatly infringed the appellant’s constitutional right of fair hearing in accordance with Article 50 (2)(j) of the Constitution of Kenya 2010.

Analysis and Determination 21. This being the first appellate court, the court is guided by the principles in David Njuguna Wairimu v Republic [2010] eKLR where the court of appeal held: -“The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellant court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”

22. After considering the grounds of appeal, records of trial court and submissions, issues for determination are as follows: -i.Whether the prosecution evidence met the required standard of proof.ii.Whether evidence of the prosecution contained numerous material contradictions which were fatal to their case.iii.Whether the defence evidence of the appellant was analysed.iv.Whether the conviction and sentence were merited.

Whether the prosecution evidence met the required standard of proof 23. Section 3(1) of the Sexual Offences Act states as follows: -1. A person commits the offence termed rape if: -a.he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;b.the other person does not consent to the penetration; orc.the consent is obtained by force or by means of threats or intimidation of any kind.

24. The elements for the offence of rape under Section 3 (1) of the Sexual Offences Act No. 3 of 2006 are: -i.Penetrationii.Lack of consent and/or consent obtained by force or means of threats or intimidation of any kind

25. In Republic vs. Oyier (1985) KLR 353 the Court of Appeal held that: -“1. 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.2. 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.3. 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.”

26. The complainant testified that when she wanted to leave the appellant’s house, the appellant held her hand, pulled her back and threw her on the bed, tore her clothes, removed her panty and raped her. As a result of the rape, the complainant got so distraught and even attempted to commit suicide as per the report by Dr. Wafisa in the P3 Form. There was no consent obtained from the complainant for the perpetrator to have sexual intercourse with her. The perpetrator forced himself on the complainant. The complainant’s broken hymen and fresh vaginal abrasions is evidence of having been raped. The complainant said that it was her employer who raped her in his residence in Mshomoroni.

27. The appellant denied having committed the offence but went ahead to say that the complainant had given him her ID card to show that she was 18 years and was not going to school. He did not explain the import that the complainant was 18 years. He also claimed that he had told the complainant about shortage of money at the Mpesa shop and that the complainant did not go to the shop on the material day but medical evidence shows that the complainant was raped and as a result of the rape she attempted to commit suicide out of shame for what had happened to her.

28. The appellant called the complainant to return his phone and key at 5. 00 pm but none of the appellant’s witnesses were present at the Mpesa shop or his house at that time. It is therefore true that they did not see the complainant as she was raped in the appellant’s house and not at the shop.

Whether evidence of the prosecution contained numerous material contradictions which were fatal to their case 29. In Philip Nzaka Watu v Republic (2016) CR APP 29 OF 2015, it was held as follows: -“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”

30. The appellant refers to contradictions in the prosecution’s case such as the age of the complainant, the time of the alleged offence, and whether the torn dera was handed over to the investigating officer or not. The alleged contradictions do not change the fact that the complainant was raped on 15. 9.2020. They are therefore minor contradictions that do not go to the substance of the offence.

Whether the defence evidence of the appellant was analysed 31. The trial magistrate in his judgment on paragraph 25 held as follows: -“I have considered the defence by the accused and find that the same did not dislodge the prosecution case. His main line of defence was that he that the complainant was not at work on the day of the alleged incident. His witnesses testified that they never saw the complainant. This fact is not disputed because the complainant stated that she was called by the accused to his house after 5. 00 pm. Further, the incident happened at his house and not at the shop.”

32. The appellant has not submitted on what aspect of his defence was not analysed by the trial magistrate.

Whether the conviction and sentence were merited 33. Section 3 (3) of the Sexual Offences Act provides as follows: -A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.

34. From the reevaluation of the evidence of the trial court at paragraphs 26, 27, 28, 30, and 32, this court finds that the conviction was properly founded. The sentence was also within the prescribed law and the trial magistrate did say that he had considered the appellant’s mitigation before arriving at the sentence. The is no cause shown why the sentence should be interfered with in consideration that the appellant took advantage of his position as an employer to subject the young girl to a forceful sexual intercourse thereby driving her to attempt to take away her life.

35. The 5 months that the appellant was in custody after conviction should be discounted from the 10 years imprisonment.

36. In conclusion, this court finds that the appeal herein has no merit and is dismissed. 14 days right of appeal explained to the appellant.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,THIS 21ST DAY OF NOVEMBER 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Mr. Ngiri for StateMr. Kamau Advocate for the AppellantAppellant present in personCourt:Copy of judgment to be supplied to the appellant’s counsel and respondent.HON. LADY JUSTICE A. ONG’INJOJUDGE