[2022] KEHC 13010 (KLR)

Masinde Alias Chrison Kaming Sunguti v Republic (Criminal Appeal E023 of 2022) [2022] KEHC 13010 (KLR) (19 September 2022) (Judgment)

Neutral citation: [2022] KEHC 13010 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal E023 of 2022

LN Mutende, J

September 19, 2022

Between

Amos Masinde Alias Chrison Kaming Sunguti

Appellant

and

Republic

Respondent

(Appeal against the original conviction sentence in S O Case no E039 of 2021 at the Senior Principal Magistrate’s Court Kimilili by Hon G Adhiambo –PM on 28/2/2022)

Judgment

1. Amos Masinde alias Chrison Kaming Sunguti, the appellant, 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 of the offence were that on August 25, 2021 in Bungoma North Sub - County within Bungoma County, intentionally and unlawfully caused his penis to penetrate the vagina of NM without her consent.

2. In the alternative, the appellant faced the charge of committing an indecent act contrary to section 11 (1) of the Sexual offences Act no 3 of 2006. The particulars of the offence were that on August 25, 2021 in Bungoma North Sub-County within Bungoma County, he intentionally touched the vagina of NM with his penis without her consent.

3. Having been taken through full trial he was convicted for the main charge of rape and sentenced to serve ten (10) years imprisonment.

4. Aggrieved, he proffered an appeal against the decision of the court on grounds that: the decision of the trial court was based on extraneous factors; it was full of contradictions; the trial magistrate was biased and the mitigation presented was disregarded.

5. Evidence adduced was that PW1 NM was going home from School when an individual emerged from the sugarcane plantation and grabbed her by the throat. She struggled but the person overpowered her and dragged her into the sugarcane plantation; tore her inner clothes as he threatened to kill her and violated her sexually then left her unconscious. Upon regaining consciousness she recollected herself, went home crying, and, reported the incident to her father, PW2, BM and led him to the scene of the incident. They went to report the matter to her school principal who gave her a letter and referred her to Naitiri Sub-County Hospital where she was examined and treated. The matter was reported to the police at Mbakalo Police Station. PW4 no 71272 Corporal Dickson Langat from Mbakalo police station visited the scene of the incident. He recovered the clothes that the complainant had then. He recorded statements and issued her with a P3 Form which was returned upon being filled.

6. Investigations conducted culminated into the arrest of the appellant by members of the public, PW5 no 235957 Inspector Kennedy Owino conducted an identification parade and the complainant identified the appellant as her assailant, hence the case.

7. Upon being put on his defence, the appellant testified to having been arrested at 9. 00 pm. on the 25th while at home and that he was not told the reason for the arrest. He denied having committed the offence.

8. The appeal was canvassed through written submissions. It was urged by the appellant that the act having been alleged to have been committed at 6. 10 am, there should have been witnesses to the act. He cited the case of Bukenya vs Uganda (1972) EA 549}} to buttress the argument.

9. He called upon the court to declare the identification parade held as a nullity since the complainant claimed that he was her eighbour who should have known him very well.

10. That no DNA test was conducted to connect him to the act and that the clothes provided in court were the ones the complainant was wearing.

11. The Respondent urged that the complainant’s evidence as to the assault on her neck was corroborated by the evidence of PW3 the clinical officer who examined her and also found presence of epithelial cells. The case of Daniel Wambugu Maina Vs Republic (2018) eKLR was cited following the argument that absolute penetration was not necessary.

12. That there was lack of consent as envisaged by section 42 of the Sexual Offences Act, and, that identification of the perpetrator was not in dispute.

13. This being a first appeal this court is duty bound to re-evaluate afresh evidence adduced before the trial court and come up with its independent conclusions bearing in mind that it did not have the opportunity of seeing or hearing witnesses who testified. This was well stated by the Court of Appeal in the case of Okeno vs Republic (1972) EA thus:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted afresh and exhaustive examination (Pandya –versus- Republic [1957] E A 336) and the appellate court’s own decision on evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions ( Shantilal M Ruwala -versus- Republic [1957] E A 570) . It is not a 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 Peter -versus -Sunday Post [1958] E A 424).”

14. This court has re-evaluated evidence adduced before the trial court, and considered rival submissions filed on appeal.

15. Section 3(1) of the sexual offences Act provides that:(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; or(c)The consent is obtained by force or by means of threats or intimidation of any kind.

16. The prosecution was required to tender evidence in support of the allegation that:i.The act of penetration occurred.ii.There was lack of consent to the act of penetration.iii.Positive identification of the perpetrator of the act.

17. On the element of penetration, in the case of Kassim Ali Republic(2006) eKLR the court held that:“So the absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.”

18. In the case of Mukungu vs Republic (2003) AHRLR 175 ( KeCA 2003) the Court of Appeal stated that:“Provided where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim was talking the truth.”

19. The complainant testified how the assailant grabbed her neck by the throat, squeezed it as he removed his trouser and inner wear. As he forced himself on to her she held his genitals and he threatened to leave her as a corpse in the sugarcane plantation if she injured him. She struggled and he squeezed her neck further leaving her unconscious. When she regained consciousness, her panty was torn and there was discharge coming from her vagina. The act occurred at 6. 10am or thereabout on August 25, 2021. She was taken to Naitiri Sub-County Hospital where she was seen by DW3 Desmond Wekesa Situma, a clinical officer who examined her and filled the P3 Form. Her school uniform, shoes and socks had mud. The high vaginal swab done showed presence of epithelial cells. Her neck had tenderness and was bruised, but, the genetalia was normal.

20. Penetration is defined by section 2 of the Sexual Offences Act as:“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”

19. There was no evidence of presence of spermatozoa but lack of such evidence does not necessarily mean that there was no penetration.

19. In the case ofOiruri Mose vs Republic(2013) eKLR the court stated that:“Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ.”

19. The trial court which had the opportunity of relying on evidence of the complainant and seeing her demeanor found here believable.

20. The argument by the state is that the complainant did not consent to the sexual act. Section 42 of the Sexual Offences Act provides that: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.

26. In the case of Republic vs Oyier(1985) eKLR the Court of Appeal stated that:“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. 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.”

19. The complainant testified that the act of penetration was committed while she was unconscious. But, this happened after she resisted and fought by holding the assailant’s genitalia as the assailant squeezed her neck. She was left with muddy clothes and shoes. A person who consents would have been careful enough not to find herself with muddy clothes. Her act of running back home to report to her father and willingly going with him to report to the school administrator was evidence of absence of consent, which was proved beyond reasonable doubt.

20. On the question of the identity of the perpetrator, the complainant stated that she knew the appellant physically for a period of three years. He was their neighbour, but she did not know his name. This fact was not unsettled in cross examination.

21. The argument of the accused is that no DNA test was conducted to prove that he was the assailant of the complainant, and that if the complainant knew him, what was the point of conducting an identification parade. On the question of lack of DNA test, it is not mandatory for DNA test to be done to prove rape, as long as evidence adduced consists of ingredients that prove the offence.

22. Regarding identification parade, such a parade is conducted to enable an eye witness to identify a suspect they did not know but allegedly saw. Where a suspect is known to the witness, it serves no purpose. This was a case where the complainant knew the assailant by physical appearance but not by name, therefore, conducting an identification parade was in order.

23. In his defence the appellant avoided commenting on the allegation of the complainant having known him by physical appearance previously. He only testified as to how he was arrested, therefore, the prosecution proved beyond reasonable doubt that he was the perpetrator of the act.

24. Although the appellant raised the question of the trial magistrate having been biased towards him at the point of delivering her judgment, he did not submit on that issue. It was therefore not established.

25. Similarly, the question of the trial court having conducted proceedings in a manner that violated the rights of the appellant was not made known following failure of the appellant to submit on the issue.

26. On the question of sentence, section 3(3) of the Sexual Offices Act provides that: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.

19. An in-depth look at the submissions does not show any challenge on the issue of sentence imposed. Therefore, from the upshot, the appeal fails and is accordingly dismissed.

DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAIROBI, THIS 19TH DAY OF SEPTEMBER, 2022. L N MUTENDEJUDGEIn the presence of:Court assistant- BrendaAppellantMr Ayekha for ODPP