[2022] KEHC 12976 (KLR)

Kilungya v Republic (Criminal Appeal 7 of 2020) [2022] KEHC 12976 (KLR) (19 September 2022) (Judgment)

Neutral citation: [2022] KEHC 12976 (KLR)

Republic of Kenya

In the High Court at Kitui

Criminal Appeal 7 of 2020

RK Limo, J

September 19, 2022

Between

Sammy Katomi Kilungya

Appellant

and

Republic

Respondent

(An Appeal against both the conviction and the sentence arising from Criminal Case No 1 of 2018 in the Chief Magistrate Magistrate’s Court at Kitui, Hon. M. Kimani (RM) and Judgement delivered on 12/2/2020)

Judgment

1. Sammy Katomi Kilungya, the appellant herein, was charged with the offence of rape contrary to section 3(1) (g) 3 of Sexual Offence ActNo 3 of 2006. The particulars as per the charge sheet were that on December 29, 2017 at about 0200 hours in Kyanika Location, [Particulars Witheld] within Kitui County he intentionally and unlawfully caused his penis to penetrate the vagina of MK without her consent.

2. The appellant denied the charge and the record indicates that the prosecution called a total of three witnesses to prove their case. The trial court upon trial found that the case had been proved beyond doubt and convicted the appellant and sentenced him to serve 30 years in jail.

3. Below is the summary of the evidence tendered by the prosecution.

4. MK (PW1), the complainant informed the court that she was at her home on the material night when someone broke in at about midnight. She stated that the person identified himself as Katomi and that he broke into her house and that after gaining access, he caught her, pulled her legs apart and placed them on his shoulders before raping her. She stated that he threatened to kill her if she screamed and that he raped her until 2:30 am upon which he left and another person came to her house holding a torch apparently looking for a phone. She however stated that the second person fled from the scene before she could identify him. She stated that she also fled from her house and sought refuge in a church, and that she reported the incident to the police the following day and later went to hospital for treatment. On cross examination, the witness stated that she was able to identify the appellant with the help of light that came from a nearby club. She also denied framing the appellant.

5. Jeff Kitheka Kiema (PW2) a medic from Kitui County Referral Hospital testified on behalf of his colleague Dr Mwinzi who he stated was in Cuba for further studies. The witness relied on a P3 form filled by his colleague who attended to PW1 one day after the assault. The witness stated that PW1 had human bites on her right breast, her right knee was swollen with reduced ranged of motions, she also sustained bruises on both lower limbs, she also had an abnormal brownish discharge from her vagina but she did not have an infection. The witness produced an appointment card as P Exh 1, a P3 form as P Exh No 2 and a PRC form as P Exh 3.

6. Lorean Njenga (PW3), a police officer attached to [Particulars Witheld] Police Post indicated that she escorted PW1 to hospital for examination after she made a report of rape at the police station. She stated she visited the scene and recovered a torn blouse, a petticoat

7. When placed on his defence, the appellant denied on oath that he committed the offence. He conceded that he was a watchman at a petrol station known as Istanbul which in his estimation was about 100 metres to where the complainant resided.According to him, he was at the petrol station doing his sentry duties and that he spent time with travelers who were waiting for matatus to take them to their destinations.

8. He faulted the complaint for framing him stating that differences with her arose when he shot her son as he was trying to break into a shop at night. He alleged that his differences with the complainant was well known to the local administration.

9. He added that he went home at 6am and slept only to be woken up at 8:30am by the police who took him to Mutomo where he found the complainant and her son. He further testified that he had known the complainant for about four months prior to the incident.

10. In her judgement, the trial court found that the prosecution had proved its case beyond reasonable doubt and convicted the appellant sentencing him to 30 years in jail.

11. The appellant was aggrieved by both conviction and sentence. He lodged this appeal and raised the following grounds namely: -i.That the trial magistrate erred in law and facts while convicting the appellant on a case which the assailant was not identified.ii.That the trial magistrate erred in law by convincing the appellant on contradictory and inconsistent evidence.iii.That the trial magistrate erred in law and facts by convicting the appellant on evidence which lacked corroboration.

12. In his submissions filed on February 28, 2022, the appellant takes issue with his identification stating that circumstances leading to his identification were not interrogated by the trial court. He submits that the environment was not conducive for positive identification. On the sentence, the appellant submits that the same was excessive and harsh.

13. The respondent through the Office of the Director of Public Prosecution did not file any response.

14. The appellant has appealed on both conviction and the sentence of 30 years. As the first appellate court, this court has the duty to re-evaluate the trial while at the time appreciating that the trial court is the one that had the opportunity of actually hearing the testimonies and seeing the evidence. This duty was succinctly stated by the Court of Appeal in Okeno v Republic (1972) EA 32 as follows: -‘‘An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellant’s court own decision on the evidence. The first appellate court must itself weight conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.’’

15. The applicant as observed was convicted of rape contrary to section 3(1) of the Sexual Offence Act.Section 3(1) of the Sexual Offences Act states that a person commits the offence of rape if;‘‘He or she intentionally and unlawfully commits an act which causes penetration with his genital organs;a.The other person does not consent to the penetration; orb.The consent is obtained by force or by means of threats or intimidation of any kind.3)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.’’

16. For an offence of rape to stand, the prosecution is required to establish the following elements.1. Penetration

2. Absence of voluntary consent

3. Positive identification of the perpetrator

(i) Penetration 17. On this aspect, the prosecution’s case rested on the evidence of the complainant and the medical evidence tendered by PW2.

18. The complainant testified that the appellant had raped her. That on the material day, she was in her house when someone whom he claims was the appellant broke in and raped her. She stated that the person identified himself as Katoni and that she was able to see him clearly using light that came from a nearby club.

19. On the question of penetration, the general rule is that even without considering the presence or otherwise medical evidence, an offence of this nature can be proved by oral evidence of a victim of rape or circumstantial evidence. This position is fortified by the holding of the Court of Appeal in Martin Nyongesa Wanyonyi v Republic (2015) eKLR while citing the case ofKassim Ali v Republic in Criminal Appeal No 84 of 2005 (Mombasa) where the appellate court stated that:‘‘The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence.’’

20. In this instance, the fact of rape was well established. The evidence of the complainant that she was raped is well corroborated by the medical evidence tendered by PW2. This court is satisfied on the basis of evidence tendered that the element of penetration was well proven by the evidence adduced by the prosecution.

(ii) Absence of voluntary consent. 21. This is a key ingredient in rape. The prosecution is required to establish and prove that the victim did not freely consent to the Act. The provisions of section 42 and 43 of Sexual Offence Act are relevant here.‘‘Section 42 provides;‘‘For the purposes of this Act, a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice.’’Section 43 (1) provides;1)‘‘An act is intentional and unlawful if it is committed-a.In any coercive circumstance;b.Under false pretenses or by fraudulent means; orc.In respect of a person who is incapable of appreciating the nature of an act which causes the offence.2)the coercive circumstances, referred to in subsection (1) (a) include any circumstances where there is-a.use of force against the complainant or another person or against the property of the complainant or that of any other person;b.Threat of harm against the complainant or another person or against the property of the complainant or that of any other person or……………….c.abuse of power or authority to the extent that the person in respect of whom an act is committed is inhibited from indicating his or her resistance to such as act or his or her unwillingness to participate in such an act.’’

22. In Republic v Ovier [1985], the Court of Appeal held as follows:-‘‘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.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.’’

23. The evidence tendered in this instance shows that the victim certainly did not consent to the act. Her room was broken into and pieces of timber tendered as P Ex4 by PW3 proves that fact.The complainant also indicated that violence was visited on her and stated that the appellant bit her breast as he threatened her. The medical evidence tendered by PW3 supports or corroborates those allegations as injuries were noted on her right breast (a bite and bruises on both her limbs and knees. The medical evidence noted from her private’s parts by the doctor shows that penetration was forced.The evidence tendered clearly proves that the victim did not consent to the act. She was raped.

(iii) Identity of the perpetrator 24. The complainant testified that an intruder came to her home and identified himself as Katoni. She also stated that she was able to see him clearly using light that was coming from a club that was near her home. She did not state how long she had known the appellant but it was the Appellant’s testimony during his defence that he had known the complainant for four months.

25. The trial magistrate found that the complainant and the appellant had known each other for a period of four months, and that the complainant lived about 100 meters from the appellant’s workplace which showed that they were familiar with each other. The trial further relied on PW1’s testimony that the assailant identified himself using the same name as the appellant that from the testimony of PW1 there was sufficient light in the room allowing her to recognize him. Based on the above, the trial court was satisfied that the appellant was positively identified as the perpetrator but was that well founded?

26. The Court of Appeal in the case of Wamunga v Republic [1989] KLR 426 stated as hereunder: -“It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.”

27. The finding of the trial court was based on a single identifying witness. Evidence of a single identifying witness must be examined carefully to ensure that it is water-tight before a conviction is founded on it. The court in Ronald Odhiambo Odinyo v Republic [2019] eKLR made reference to the case of Kiilu & Another v Republic [2005] 1 KLR 174 where the question of identification of single witnesses was discussed and held;“Subject to certain well known exceptions, it is trite law that a fact may be proved by testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances, what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the probability of error.”

28. The big question is whether the evidence presented in respect to identification can be termed foolproof and safe to found a conviction. As I have said above the conviction of the appellant based on the evidence on identification hinges on the evidence of a single witness. AS well illustrated in the above cited decision, a court must be satisfied that the evidence is watertight and free from error.I have keenly looked at the evidence tendered by PW1 in that respect. She says the intruder identified himself as Katomi which is the appellant’s name. She says she had stayed in that plot for 18 years which means even if the appellant had not stated who he was she could have easily recognized him either visually or even through voice. She did however not say she recognized him by voice. This is what she stated;‘‘He raped me until 2:30am when he left. Another person came with a torch. The person with a torch fled before I identified him. Before he left, he told me to take her (sic) phone to the place where he used to work………..’’.A critical look at that testimony pokes holes on the positive identification of the perpetrator particularly in light of what the witness stated in cross examination.Under cross examination by the appellant, the complainant;‘‘I saw you clearly using light from nearby club of Kwema…………….’’Now if there was sufficient light from the said club, why would a person use a torch because she says she saw ‘‘another person’’ coming with a torch after the appellant had left at 2:30 am after raping her?She also says she did not recognize that other person but interestingly, the person told her to take the phone left behind possibly by the perpetrator to him at ‘‘his place of work’’ meaning the complainant must have known the place of work of the unidentified person. The other question posed is what happened to that phone? Did the phone have a connection to the appellant, supposedly the perpetrator who could have perhaps forgotten it at the scene of crime when he went away at 2:30am? Was that phone ever recovered?PW3 states that she visited the scene and recovered a torn blouse, a petticoat, and pieces of timber. There is no mention of the phone and if the same was recovered. Again if someone would go to her house at wee hours of the morning for a phone, how did that phone ended up there? Was the owner of the phone the perpetrator? Or was he connected with him? Those linking questions cast doubts about the identity of the perpetrator and it is difficult under such circumstances to state firmly that identification of the appellant was free from error or was beyond doubt.

29. This court finds that the trial court failed to address her mind clearly on that question and fell into error when it concluded that the appellant was positively identified.

30. It is only in that regard that I find merit in this appeal. The issue of identification of the appellant was not free from possibility of error given the circumstances I have highlighted above. The evidence of identity was based on a single witness but that witness in respect to identity of the perpetrator was a bit shaky and there was no other evidence adduced that could have helped corroborate and add weight to evidence tendered by the complainant.In the premises the appeal is allowed. The conviction is quashed and sentence reversed. The appellant shall be set free forthwith unless lawfully held.

DATED, SIGNED AND DELIVERED AT KITUI THIS 19TH DAY OF SEPTEMBER, 2022. HON. JUSTICE R. K. LIMOJUDGE