[2022] KEHC 14661 (KLR)

Korir v Republic (Criminal Appeal E020 of 2021) [2022] KEHC 14661 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14661 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Criminal Appeal E020 of 2021

RN Nyakundi, J

November 3, 2022

FORMERLY ELDORET CRIMINAL APPEAL NO. 168 OF 2019

Between

Emmanuel Cheruiyot Korir

Appellant

and

Republic

Respondent

(From the conviction and sentence of Hon. Jacinta A. Owiti Senior Principal Magistrate’s court at Kapsabet in Criminal Case No. 2695 of 2015)

Judgment

Coram: Hon. Justice R. NyakundiMr Mugun for the state Background 1. The appellant was convicted with the offence of rape contrary to section 3 (1)(a) (c) as read with section 3 of the Sexual Offences Act No 3 of 2006. The particulars of the offence are that on September 15, 2015, the accused intentionally and unlawfully did cause his penis to penetrate the vagina of the complainant against her will. The accused was also charged with the alternative charge of committing indecent act with an adult contrary to section 11 of the Sexual Offences Act No 3 of 2006. The appellant was found guilty and sentenced to serve 10 years imprisonment on October 1, 2019.

2. The appellant being aggrieved by the said decision has lodged this appeal in which he raises the following grounds which I quote verbatimi.That the learned trial magistrate erred in law and fact by not considering that medical report that was produced before court taking into account that the lab results totally contradictory.ii.That the trial magistrate erred in law and fact when delay on the evidence of a single witness whose credibility could not hold watertight.iii.That the trial magistrate erred in law and fact by not properly evaluating the evidence before arriving to an erroneous conclusioniv.Thatthe trial magistrate erred in law and fact when relying on a contradictory evidence to secure conviction.

3. The appellant urged the court to allow the appeal and quash the trial court’s sentence.

Evidence at the Trial Court 4. During trial, the prosecution called three witnesses to testify against the appellant. PW1, RJ the complainant testified that on September 15, 2015, at around 11 am she had gone to Nandi Hills Town to borrow money from the Sacco and was around the building where the Sacco is until 5pm; that she decided to visit her relative nearby called E and when she did not find her in her house, she sent a child C to go call the said E for her; that it was around 6;30 pm when the accused person found her in the compound , pulled her into his house which he had rented in E’s compound; that the accused raped her till 6 am in the morning, pushed her out of the house; that she then called Esther and Cherop and she was escorted to Nandi Hills Police station where she reported the incident and went to Nandi Hills Sub County Hospital for treatment. The complainant stated that the incident occurred on Tuesday and the accused was arrested on the same week on Friday. Kapsabet Market to deliver milk to a certain woman and on her way back, she met the appellant who offered to take her to a hotel to have tea but he instead lured him to a certain house where he held her mouth, closed the door, pushed her on the bed, removed his and her clothes and defiled her. PW1 testified that after the incident, he pushed her outside and she went home and never said a word as the appellant had threatened to kill her if she told anyone what had happened

5. PW1 further stated that she did not consent to having sex with the accused and that the accused kept covering her mouth with his hand whenever she tried to scream. On cross examination by the appellant, PW1 stated that she had gone to Kipsamoo to check on her plot because she wanted to construct a house and maintained that during the alleged incident, whenever she tried to scream, the accused threatened to kill her.

6. Kosgei Keter a senior clinical officer Nandi Hills County Hospital testified as PW2. He stated that the complainant was attended to at the said clinic and that from the medical examination conducted on her, she had normal general genitalia with thick whitish discharge with foul smell. She also had pre-existing syphilis and there was presence of urinalysis pulse UTI which according to PW2 is not sexually transmitted.

7. Police constable Simeon Nyambane testified as PW3 and testified he received the complainant on September 16, 2015 who reported that she had been raped by a person known to her and the police referred her to the hospital upon issuing her with a p3 form which was duly filled at the hospital. He further explained that on September 18, 2015, the police visited the scene of crime, arrested the accused and charged him with the offence of rape.

8. After the close of the prosecution’s case, the appellant was put on his defence where he gave unsworn evidence. He stated in his testimony that on September 15, 2015, he was at his place of work at Municipal Council grounds when he was arrested. He denied the charges levelled against him and stated that the torn pant of the complainant was not availed in court. He also stated that the complainant was examined and found to be suffering from a sexually infected disease and that the p3 form is silent on that issue. The appellant stated he had never met the complainant prior to his arrest.

9. The trial court in its judgment delivered on October 1, 2019 convicted the appellant and sentenced him to serve 10 years in prison which sentence is the subject of this appeal.

The Appeal 10. This court on July 28, 2022 directed that the appeal be canvassed by way of written submissions the appellant filed his undated submissions which are properly on record. The prosecution on its part filed its submissions on October 21, 2021.

The Appellant’s Submission 11. The appellant in his submissions submitted that according to the medical examination report of PW2, complainant’s urine was normal, no bruises on genital, normal pus cell, no spermatozoa seen and no injuries noted and as such, the prosecution’s case was not proved.

12. According to the appellant, the prosecution alleged that the appellant caused his penis to penetrate the vagina and anus of the complainant and that medical report did not show details of any injuries around the anus.

13. The appellant also faulted the trial court for relying on only one single witness whose credibility was full of contradictions and inconsistencies. He submitted that the alleged relative who the complainant stated in her evidence that she escorted her to the police station and the minor C were not called as witnesses to support the prosecution’s case.

Respondent’s Submissions 14. In opposition to the appeal, the respondent submitted that the prosecution was required to establish penetration, absence of consent and that the appellant was properly identifies as the perpetrator of the act. As regards penetration, prosecution counsel submitted that PW1 gave a vivid recollection of the events of September 15, 2015 and that it was her testimony that on that particular day, she had gone to visit her elderly relative, named E at her home around 6pm when the appellant found her, grabbed her into his house and forcefully raped her until dawn both vaginally and anally.

15. On the issue of the inconsistencies between the evidence of the complainant and the medical report produced as alleged by the appellant, learned prosecution counsel contended that there were no contradictions in the prosecution’s evidence. According to the prosecution, even in the absence of physical injuries to the victim’s genitalia or presence of spermatozoa, the offence of rape can still be proved through the oral evidence of the victim or circumstantial evidence. It was submitted that section 124 of the Evidence Act was incorporated by the legislature so as to allow the courts to convict an offender based solely on the evidence of the victim. Reliance was placed in the Supreme Court of Uganda case of Bassita v Uganda SC criminal appeal No 35 of 1995.

16. As regards the absence of consent, learned prosecution counsel submitted that PW1’s narration of the account of September 15, 2015 clearly indicated that there was use of force on the part of the appellant. it was submitted that pw1 stated that the appellant pulled her by the hand to his house and tore her inner pant before raping her and even covered her mouth with his hand every time to the extent that she was unable to scream.

17. Lastly, as to whether the appellant was properly identified as the perpetrator of the act, it was submitted that he was positively identified. According to the prosecution counsel, the complaint when giving her testimony, stated that although the appellant never switched on the light, when he grabbed her to his house, it was not dark and that there was sufficient light that enabled her to see him. It was thus submitted that the appellant’s identification though not by prior recognition, was proper and sufficient to place the appellant at the scene and as the perpetrator of the sexual offence.

18. As regards the sentence meted on the appellant, the prosecution submitted that prior to sentencing the appellant, the trial magistrate made an order for a pre-sentencing report which the court considered before giving a sentence of 10 years imprisonment despite the fact that the Act provides for a mandatory minimum sentence of ten years.

19. In the end, court was thus urged to uphold the lower courts finding on conviction and sentence.

Determination 20. I have perused the entire evidence on record and the submissions filed by the rival parties. The duty of this court as the first appellate court is to re-evaluate the evidence afresh and come up with a fresh finding with a caution that it did not have the chance to witness the full trial like the lower court as was set out in the case of Okeno v Republic [1972] EA 32 where the court stated: -“The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v Republic [1957] EA 570. ) It is not the function of a 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 draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, (See Peters v Sunday Post [1958] EA 424. )”Section 3(1) of the Sexual Offences Act, 2006 defines rape as;A person commits the offence termed rape if –(a)He or she intentionally or unlawfully commits an act which causes penetration with his or genital organs.(b)The other person does not consent to the penetration; or(c)The consent is obtained by force or by means of threats or intimidation of any kind.Section 2 of the Act on the hand defines penetration as;The partial or complete insertion of the genital organs of a person into the genital organs of another.

21. From the above provisions of the law the prosecution was under obligation to prove its allegations that the appellant was the perpetrator of the act, there was penetration of the complainant's genital organ and that consent for such penetration was procured by force.

22. PW1 in her evidence stated that the appellant found her outside Esther’s house at around 6pm, and pulled her to his house where he raped her repeatedly until dawn. I therefore find that the identity of the perpetrator of the offence was established.

23. The next issue that I need to address myself to is with regard to whether there was penetration. PW2 in his evidence testified that the complainant was examined at the Nandi Hills County Hospital and it was established that she her genitalia was normal and had a thick whitish discharge with foul smell. The degree of injury was opined as rape. I therefore find that there was penetration.

24. The last issue in this case is whether consent for such penetration was procured by force.

25. The appellant raised the issue that the complainant was the only witness to the alleged rape incident and there was no corroboration to the allegations of rape from the other persons who escorted her to the hospital. The prosecution on the other hand submitted that conviction by the trial court founded on the basis of section 124 of the Evidence Act, that the complainant victim of sexual offence was, for reasons to be recorded was telling the truth as to the allegation of offence.

26. Although the issue of the retracted affidavit has not been raised in this appeal, this court as mentioned above has re-evaluated the evidence of the trial court in toto. There is an affidavit on record sworn by the complainant on September 24, 2019 where she retracted her evidence by categorically stating that the accused never raped her and that she had consented to the same for cash exchange. The probation report filed in court on October 22, 2019 reveals that indeed the victim had consented to having sex with the offender for a consideration of Kshs 1,000 and that the accused was not gentle. It is a wonder that the complainant who is said to have been weeping when narrating the alleged ordeal to the court could fabricate such a grave issue. This attempt to dissociate herself from the charges in my view, has clearly raised reasonable doubts on the prosecution case.

27. In criminal cases the standard of proof is beyond reasonable doubt. Lord Denning in Miller v Ministry of Pensions, [1947] 2 ALL ER 372 held:-“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

28. In the case of Elizabeth Waithiegeni Gatimu v Republic [2015] eKLR Mativo J observed;“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favourite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”

29. Flowing from the above, it follows that after the consideration of the complainant’s evidence and particularly her own admission in her affidavit sworn on September 24, 2019, the court is left to wonder on what realy transpired on the night the alleged offence is said to have been committed. This mere doubt in the court’s mind is enough to exonerate the accused from the charges levelled against him.

30. The upshot is that this appeal succeeds. Consequently, I hereby quash the conviction, set aside the sentence and order that the appellant, Emmanuel Cheruiyot Korir be released from prison forthwith unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 3RD DAY OF NOVEMBER, 2022. ............................R. NYAKUNDIJUDGE