[2022] KEHC 1748 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

CRIMINAL APPEAL NO. 41 OF 2019

MARY WAMBUI WANJIRU......................APPELLANT

VERSUS

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

(BEING AN APPEAL FROM THE JUDGEMENT OF HON. GICHEHA(CM) DATED 16TH MAY 2019 IN

NAKURU CMCCR NO. 2167 OF 2018).

JUDGEMENT

1. The appellant and her co accused were charged with various offences. The first count was Robbery with violence contrary to Section 296(2) of the Penal Code. The particulars of the offence were that on the 9th day of July 2018 at [Particulars Withheld] area within Nakuru county jointly robbed one JCT her one mobile phone make Itel, cash kshs.5000, and assorted clothes all valued at Kshs. 15,500 and at or immediately before or immediately after the said robbery used actual violence on the said JCT.

2. The second count was Gang Rape contrary to Section 10 of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 9th day of July 2018 at [Particulars Withheld] area within Nakuru county, you Mary Wambui Wanjiru with another before court with common intention aided in the commission of rape of JCT by assaulting, undressing and holding her legs to allow Samuel Kiiru Hassan to rape without her consent.

3. After a full trial the appellant was convicted on all counts and sentence to suffer death on the first count and 20 years’ imprisonment on the second count. She has filed this appeal raising the following grounds: -

a) THAT the learned trial magistrate erred in point of law and fact when he/she relied on the evidence adduced before the court by prosecution witnesses which was totally lied according to proceedings.

b) THAT the learned trial magistrate erred in point of law and facts when he/she sentencing me 2nd acc. to serve death sentences on count (1) without an essential witness e.g. the people who assist PW1 | at the scene of crime.

c) THAT the learned trial magistrate erred in point of law and fact when he/she convict and sentencing me with a collaboration evidence which in this trial record there is no collaboration evidence at all according to this file.

d) THAT the learned trial magistrate erred in point of law and fact when he/she didn’t note that investigate officer of this case did not investigate this case to the required standard, investigation was poorly done.

e) THAT the learned trial magistrate erred in point of law and fact when he/she notes that in this case there is no arresting officer and yet acc. 2nd arrested at Nakuru town.

f) THAT the learned trial magistrate erred in point of law and fact when he/she reject my defence without a cogent reason.

4. Before looking at the same it shall be worthwhile to summarize the evidence as presented during trial.

5. PW1 JC,the complainant testified that she works as a house help and that on 9th July 2018 she met the appellant’s co accused whom she inquired where she could get a job. She gave him her phone number and after sometime he called her. They went with him to Maili kumi where the appellant, her co accused and her went to drink alcohol in a certain bar.

6. That thereafter they left and on the way they alighted at some forest as the motorbike could not move on the grass. The appellant and her co accused told her to remove her clothes. They started assaulting her and forcefully removed her clothes and she onlyremained with her panty which was later removed by the appellant. The said appellant held her legs and her co accused proceeded to rape her. She tried to scream but the appellant held her mouth and after they were through they left her there as they went with the motorcycle. She screamed and a person at the nearby hotel heard and came to her rescue. She was given a shuka to cover herself and taken to the police station.

7. PW1 went on to testify that she was thereafter referred to the Nairobi women hospital for treatment. That she was also given a P3 form which she filled and she identified it in court. She went on to state that later while in town she saw the appellant wearing her clothes and she screamed for help. Members of the public came and arrested the appellant as well as the police. She testified that she recognised her clothes as well as the appellant’s face. She was later taken by the police to her house where the complainants maasai shuka was found. She later went back to the police station where she found the appellant had been arrested.

8. When cross examined by the appellant she said that she came to know her on the day of the incidence but she knew her face as she was the one who removed her clothes.

9. PW2 KAREHU KURU testified that the 1st accused was a son to his brother in law and that he had given his motor cycle registration number KMBS 946K for his youngest son who had died. He said that he later learned that he had been arrested for raping a girl. He said that the last time he saw the motorbike was in May and later he identified it at the police station. He produced the same as an exhibit.

10. PW3 CORP. MARGARET BUSIENEI from Nakuru police station carried out the investigation after the complainant made a report on 10th July 2018. She was referred to the hospital for medical attention where the P3 and PRC forms were filled. She recorded her statement and later the appellant was arrested by the members of the public while she wore the complainant’s clothes. The appellant led the police to her co accused house where the exhibits were recovered. She produced the same in court.

11. When cross examined by the appellant she said that she did not arrest the appellant, that the complainant did not show her any mark on the said clothes but she was however able to identify the appellant.

12. PW4 EDWIN WAMBANI a clinical officer testified on behalf of Dr. Kariuki who examined the complainant. The doctor found that there was an old torn hymen and there was pus cells and he concluded that there was trauma to the vagina. He produced both the P3 and PRC forms.

13. When cross examined by the appellant she stated that the PW1came to the hospital after two days after the incident and she said that it was a man who had raped her but there was a woman present.

14. When placed on her defence the appellant gave unsworn evidence denying the charges and stated that on 25th August 2018 she had come from town when PW1 came and caught her and said the clothes she was wearing were hers. She went on to state that PW1 said that she did not know the appellant well but the clothes she was wearing were hers. That she was taken to the police station on 26th and went in a car to a plot she did not know where they recovered a kikoi. That she did not know to whom that plot belonged and that she did not know PW1.

15. The court directed that the appeal be disposed by way of written submissions which the parties have complied.

Appellant’s Submissions

16. The appellant submitted that upon perusal of the trial court record she noted that the evidence adduced concerning robbery with violence, in particular to the identification of the clothes by PW1 and rape were total lies. That the prosecution failed to call the person who assisted PW1 at the scene of crime. The appellant urged the court to allow the appeal, squash the conviction, set aside the sentence and that she is set at liberty.

Respondent’s Submissions

17. The learned state counsel submitted that the complainant spent sufficient time with the accused persons and that it was during the day and thus there was no need of an identification parade. That the complainant saw the appellant wearing her clothes on 25th July 2018 and that is when she screamed for assistance from the public. He submitted further that it had adduced cogent evidence and that the narration by the complainant was convincing and nothing in the proceedings indicated frame up or ill motive by the complainant. That the said evidence left no doubt as to who the culprits were. He urged the court to uphold the conviction and find the appeal to be unmeritorious.

Analysis and Determination.

18. The duty of the court at this level was spelt out in the case of OKENO V. REP. 1973 EA 32 namely.

“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya v R [1957] EA 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M Ruwala v R [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.

19. I have carefully examined both the evidence on record, the exhibits produced and the submissions by the parties. The issue arising for determination is whether the ingredients of the two offences namely robbery and rape were established.

20. Section 296 (2) of the Penal Code clearly points out the same. It states as follows;

“If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death”.

21. In view of the above cited provisions, it is clear that the assailant must thus be armed with any dangerous weapon, in a company of more than one person and inflict personal injury to the victim. In the case at hand it is evident that those who attacked the complainant were two who in this case were the appellant and her co accused. There is no doubt that the appellant participated in the offence as she was clearly identified by the complainant.

22. Contrary to her submission, she spent the part of the day and evening of the material date with the complainant together with her co accused as they went to drink alcohol in a certain bar and the three thereafter left and on their way they alighted at some forest. Further, while at the forest the appellant assisted the co accused to pin the complainant down, removed her panty and her co accused raped the complainant as the appellant held her legs. From the foregoing the act of raping complainant was forceful and the doctor found that there was trauma on the complainant’s vagina as well as pus cells.

23. In addition, they also forcefully took the complainant’s clothes and other belongings which were later recovered both in the custody of the appellant as well as her co accused and the complainant managed to identify all her recovered items.

24. In the premises, i find that the offence of robbery was established against the appellant and the reasons by the appellant in her submissions that the evidence adduced concerning robbery with violence, in particular the issue of identification of the clothes by PW1 and rape were total lies are unfounded.

25. On the count of rape, it is clear from the evidence adduced in court by the complainant, that both the appellant and the co accused participated in the commission of the offence. The appellant held the complainant’s legs apart while her co accused raped her and she also provided a condom to her co accused

26. Section 10 of the Sexual Offences Act provides the essentials for the offence of rape. It states as hereunder;

“Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life.”

27. In view of the above definition, I find that the ingredients of the offence were proved by the respondent and I do not agree with the appellants’ line of submission.

28. The appellant gave unsworn evidence and she never attempted to explain her presence at the scene and what role she may or may not have played. The same has no probative value as it did not afford cross examination by the respondent. The appellant and her co accused took advantage of a woman who was desperate for employment and the said act was unlawful.

29. In the premises, I would find that the appeal lacks merit and dismiss the same in its entirety.

30. On the issue of sentence however I note that the appellant was sentence to suffer death on the first count and 20 years’ imprisonment on the second count though suspended. This court takes note of the facts herein and is of the considered opinion that death sentence may not be efficacious herein.

31. In the premises, the death sentence imposed by the trial court is hereby set aside and substituted with a custodial sentence of 20 yearsfrom the date of the trials court judgement. The same shall run concurrently with the sentence of 20 years imposed by the trial court on the second count which in this case and for the avoidance of doubt is no longer suspended.

32. Orders accordingly.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 10TH DAY OF MARCH 2022.

H .K. CHEMITEI.

JUDGE.