[2023] KEHC 19696 (KLR)

Mbithi v Republic (Criminal Appeal E013 of 2022) [2023] KEHC 19696 (KLR) (27 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19696 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Appeal E013 of 2022

MW Muigai, J

June 27, 2023

Between

Evans Mwania Mbithi

Appellant

and

Republic

Respondent

(An appeal from the original conviction and sentence of the Principal Magistrate’s Court at Machakos Criminal. Case no. 36 of 2019 delivered on 7th March, 2022 by Hon. Ondieki)

Judgment

Background 1. Pursuant to charge sheet dated and filed on 2nd July,2019, the Appellant was charged with the offence of gang rape contrary to Section 10 of the Sexual Offences Act of 2006.

2. Particulars of the offence were that on 14th November,2018 in Mwala Sub-County within Machakos County, the accused jointly in association with another not before this Court with common intention interns, intentionally and unlawfully caused his penis to penetrate the virgina of MMN without her consent.

Alternative charge 3. In the alternative the Appellant herein was charged with the offence of committing an indecent act with an adult contrary to Section 11A of the Sexual Offences Act of 2006. The particulars of the offence were that on 14th November,2018 in Mwala Sub-County within Machakos County, the accused jointly in association with another not before this Court with common intention interns, intentionally touched the virgina of MMN with his penis against her will.

Appeal 4. The appellant being dissatisfied with the judgment of the trial court, vide Petition of Appeal and Memorandum of Appeal both filed on 14th March,2022. Petition of Appeal challenging the decision of the Trial Court contains the following grounds: that he pleaded not guilty at trial; that he be granted leave to appeal against the conviction and sentence; that the Appellant is a poor and has no money for Appeal fees; that he wishes to be present during the hearing. The filing of appeal out of time was granted on 29/11/2022.

5. The Memorandum of Appeal against both the conviction and sentence is brought on the following grounds:a.That the learned Magistrate erred in both fact and law by convicting the Appellant on evidence that did not meet the minimum threshold to uphold a conviction.b.That the learned Magistrate erred in both fact and law by not considering the Appellant’s sworn defence.c.That the Appellant was not accorded the right to a fair trial as per Article 50 (c), (j), (k) of the Constitution of Kenya.d.That he be furnished with the trial proceeding records for more grounds before the hearing of this appeal.

6. The Appeal was disposed of by way of written submissions

SubmissionsAppellant’s Submissions 7. Vide the Appellant’s Submissions filed on 13th January,2023, it was submitted that this Court consider the principles of re-evaluation and analysis of cases by the first appellate court as laid down in the case of Okeno vs R of subjecting the evidence tendered in the lower court to a fresh and exhaustive examination and drawing its own conclusions. Reliance was placed in the Indian Case K. Anbazhagan V State of Karnataka and Others“The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely… The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.”

8. Contending that this Court considers the following issues:a.Whether the prosecution proved their case beyond reasonable doubt?b.Whether the evidence adduced is commensurate with the conviction

9. It was the Appellant’s submission that the penetration was not proved as per the trial proceedings. Reliance was made on Paragraph 36 of the judgment:“in this case, the treatment notes, PRC Form and P3 Form were marked identification as series 1,2 and 3 respectively. Despite the magnanimity of this court in granting a generous opportunity to the state to secure attendance of the Medical Doctor, the state failed to secure attendance of the said Medical Doctor who examined MMN … it follows the treatment notes the PRC Form and P3 Form were not tendered in evidence. In such circumstances, the document does not become an exhibit legally speaking.”

10. It was the Appellant’s contention that one would be left with the question that what would prove that there was penetration if not for the treatment records? Averring that the Learned Magistrate did the wrong application of Section 124 of the Evidence Act by stating that;“A window and exception to the general rule has been provided to take care of situations where 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 person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”

11. It was the position of the Appellant that there was a wrong application of the above provision since the said provision of the law starts with reference to Section 19 of the Oaths and Statutory Declaration Act in which he averred that Section 19 indicates when the exception to Section 124 of the Evidence Act could be applied i.e. evidence of Children of tender years. Opining that the evidence of PW-1 did not meet the requirement of Section 124 of the Evidence Act. Hence, it is his contention that the Prosecution did not prove their case beyond any iota of doubt.

12. As to the ground of failure to avail exhibit and witnesses, it is urged that witnesses were not called to adduce evidence reference was made to page 19 and 41 of the trial proceedings contending that PW 3 (Investigating Officer) on lines 8 to 12 avers that:“… I spoke to people. I spoke to witnesses. I recorded a statement from Muthama. The witnesses have already testified. Yes, the PRC Form, P3 Form and treatment notes supports the allegations. She did not produce the clothes she was wearing.”

13. It was submitted that on page 19 to 20 the prosecution states that “there was no Doctor who was to produce the PRC and P3 forms and medical forms. He got emergency at Masii Hospital”. Contending that the sentiments of the Investigating Officer and the Prosecution a vital witness one Mr. Muthama was never called to testify same to the expert witness a doctor herein. Opining that despite summons being issued to the above witnesses by the Investigating Officer, the vital witnesses were never called to testify up to close of prosecution case. Reference was made on page 32 of 41 lines 11-13 of the proceedings. “Prosecution: it is for hearing. I am not ready to proceed. The investigating Officer did not avail any witness to appear. No reason has been given. I pray for another hearing date.”

14. Submitting that the Appellant on page 33 of 41 of the trial court proceedings asked the court to prompt the prosecution in availing the witnesses. Hence, it is the contention of the Appellant that the Learned Magistrate ought to have drawn a conclusion that failure to call such vital witnesses was prejudicial since the prosecution inadvertently failed to call having believed that such witnesses would have been adverse to them. Reliance was made on the case of Bukenya –vs- Uganda (1972) EA 549 at page 550 in which the Court of Appeal observed that:“------- while the Director is not obliged to call superfluity of witnesses, if he calls evidence which is barely adequate and it appears that there are other witnesses who were not called, the court is entitled under the general law of evidence, to draw an inference that the evidence of those witnesses if called would have been and would have tendered to be adverse to the prosecution case.”

15. It was the position of the Appellant that the lower court erred by filling in gaps for the prosecution on a case that had collapsed ab initio. Reliance was made on the case of Bukenya –vs- Uganda (supra) in which it was held;“it is not the duty of the Court to stage manage the case for the prosecution, nor is it the duty of the court to endeavor to make a case where there is none to an accused person. The duty of the court is to hold the scale to see that justice is done according to the law on evidence before it”

16. It was submitted by the Appellant that law confers power upon the trial court to summon any witness or evidence that it deems essential for a fair, just and impartial decision to be arrived at as is envisaged under Sections 144, 150 of the Criminal Procedure Code and Section 107 of the Evidence Act. In view of these provisions, the Appellant placed his reliance on the Case of Bukenya –vs- Uganda (1972) EA 548 and Charles Kibara Muraiya Vs Rep. Cr. APP. No. 33 of 2001, where the superior Court proclaimed:“The more serious the charge, the heavier the burden of proof on the prosecution.”

17. Finally, the Appellant prayed that appeal be allowed and conviction quashed.

Respondent’s Submissions 18. Vide Respondent’s submissions dated and filed on 1st March 2023, the appeal was opposed on the following grounds;a.The trial court relied on evidence, that did not meet the minimum threshold required in law. On this ground, it was submitted that on 14th November,2018 at around 10pm, the victim testified that she had stepped out to look for change and on her way back she heard someone call her from behind. She turned and saw the Appellant who was well known to her. She waited for the Appellant and while walking together back to the club he pulled her to the thicket slapped her on the face injuring her left eye as she was resting she screamed for help while the Appellant was trying to remove her panty.

19. Contending that the trial Court was right in relying on the testimony of PW-1 since she was able to identify the Appellant appropriately as the perpetrator of the heinous act. averring that PW -1 testimony was corroborated by PW-2 who witnessed the incident and pulled of the Appellant on top of the victim.b.The trial court failed to consider the Appellant’s defence.

20. On this ground, it was the Respondent’s submission that the trial court considered meticulously the Appellant’s sworn defence which was not corroborated by any witnesses. Averring that the Appellant narrated how he was at the club and placed an order for a drink for Kshs 200/=, gave the victim Kshs 1000/= and after enjoying his drink she turned against him. Urging that PW 2 remove the Appellant from the and they assaulted him.

21. It was the position of the Respondent that the Appellant’s defence did not controvert the direct evidence adduced by PW 1 and PW2. Contending that upon scrutiny of the Appellant’s defence, it is a mere afterthought that cannot shake the evidence adduced by the Prosecution. Hence, the trial Court was right in disregarding the Appellant’s defence.c.The appellant was not accorded the right to a fair trial as per Article 50 (c), (j), (k) of the Constitution of Kenya

22. As to this ground, reliance was placed on Article 50 (2) of the Constitution which is to the effect that:Every accused person has the right to a fair trial, which includes the right-c.to have adequate time and facilities to prepare a defence;j)) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;k)to adduce and challenge evidence;

30. It was averred that the Trial Court issued a ruling on 26th October.2021, the Appellant was placed on his defence and the trial court set the defence hearing on 16th November.2021 reference was made to page 35 of 41. Urging that the Appellant was supplied with witness statements P3 form, post rape form and the Appellant was given ample time to cross examine all prosecution witnesses and to challenge their evidence in court.

31. Contending further that the Appellant was properly identified by PWI as she narrated to the trial court on how the Appellant and his companion pinned her down while the Appellant raped her. Poising that Appellant was well identified by the victim who knew him very well. Reliance was placed on the case of Peter Musau Mwanzia VS Republic (2008) eKLR in which the court of Appeal expressed itself as follows“We do agree that for evidence of recognition to be relied upon, the witness claiming to recognize a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show, for example, that the suspect has been known to him for some time, is a relative, a friend or somebody within the same vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing the suspect at the time of the offence, can recall very well having seen him earlier on before the incident. It is not clear whether that is what Mr. Mutuku refers to as basis for recognition.”

32. It was the position of the Respondent that Section 10 of the Sexual Offences Act under which the Appellant was convicted and sentenced provides:“10. 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 fifteen years but which may be enhanced to imprisonment for life”

33. It was submitted that based on the evidence of PW1 and PW2, the Appellant was in the company of Kilungu who restrained the victim while the Appellant raped her. Hence, both the Appellant and Kilungu had a common intention to commit the offence.

34. It was the position of the Respondent on the issue of medical evidence in which the Appellant had averred that the trial court failed to call the medical doctor who filled PRC form and the P3 form, Respondent contended that the correct legal position is stated in the case of Chila Vs Republic (1967) EA 722 at page 723 para c“The judge should warn… himself of the danger of acting on the uncorroborated testimony of the complainant, but having done so he may convict in the absence of corroboration if he is satisfied that her evidence is truthful. If no such warning is given, then the conviction will normally be set aside unless the appellate court is satisfied that there has been no failure of justice.”

35. Further, reliance was made on the case of Geoffrey Kioji vs Republic, Crim. APP. No. 270 of 2010, the court held that:“Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.”

36. Consequently, reliance was made to section 124 of the Evidence Act which provides:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that Section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that 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 person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”

37. Finally, the Respondent submitted that the trial court was right in convicting the Appellant upon scrutiny of the direct evidence adduced by PW1 & PW2. Contending that the 10 years sentence against the Appellant is sufficient and appropriate in law. Hence, urged that this Honorable Court uphold the conviction and sentence imposed by the trial court.

Determination 38. This Court Considered the Memorandum of Appeal the written Submissions of the parties through respective Counsel and Trial Court record and the issues raised for determination are grounds of appeal by the Appellant will be upheld and appeal allowed or the grounds of appeal and the appeal dismissed.

39. The Appeal was outlined as follows;a.That the learned Magistrate erred in both fact and law by convicting the Appellant on evidence that did not meet the minimum threshold to uphold a conviction.b.That the learned Magistrate erred in both fact and law by not considering the Appellant’s sworn defense.c.That the Appellant was not accorded the right to a fair trial as per Article 50 (c), (j), (k) of the Constitution of Kenya.d.That he be furnished with the trial proceeding records for more grounds before the hearing of this appeal.

40. In the Appellant’s Written Submissions the Appellant outlined amended grounds of appeal under Section 350 of CPC as follows;a.The Prosecution did not prove the element of penetrationb.The evidence was overly inconsistent, uncorroborated and therefore inconclusive to sustain a conviction.c.The Prosecution failed to avail vital witnesses and a crucial exhibitd.The Appellant appeal against conviction [and not sentence.]

41. The Appellant further condensed the grounds into 2 parts as follows;a.Whether the prosecution proved their case beyond reasonable doubt?b.Whether the evidence adduced is commensurate with the conviction.

42. This Court as 1st appellate is mandated to consider the principles of re-evaluation and analysis of the evidence as laid down in the case of Okeno vs Republic supra. The Court should subject the evidence tendered in the Trial Court to a fresh and exhaustive examination and drawing its own conclusions. Reliance was also placed on the Indian case K. Anbazhagan V State of Karnataka and Others supra.

43. Burden & Standard Of Proof(Section 109-111 Evidence Act)109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.111. Burden on accused in certain cases(1)When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him…….Lord Denning on proof beyond reasonable doubt in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 stated:-“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 favor 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.”Hon. R. Nyakundi J. in Republic vs. Ismail Hussein Ibrahim [2018] eKLR stated:-“…the prosecution has the duty to prove all the ingredients of the offence beyond reasonable doubt and there is no burden on the part of the accused to prove his innocence at any one given time. The law only permits very few statutory exceptions where an accused person can be called upon to give an explanation in rebuttal. However, this does not shift the burden of proof from the prosecution”

44. This Court considered the Trial Court evidence as follows;

Proceedings In The Trial CourtProsecution’s Case 45. The case for the prosecution was anchored on the evidence of three (3) witnesses. MMN gave her evidence as PW1 stating that she was at the material time a Bartender at Green View Club within Masii. She stated that on 14/11/2018, at around 10 pm, she was on duty and went out to look for change in a nearby shop; that while walking back she felt someone behind her, then he called and realized it was the Appellant. The Appellant told her to wait for him so that they walk together back to the Club which she agreed and upon reaching the Appellant, he held her hand and pulled her into the thicket.

46. PW1 refused that is when the Appellant slapped her on the face injuring her left eye. She testified that she screamed for help and heard someone coming to rescue her; that at that time the Appellant had pushed her down and was struggling to remove her panty while she had her skirt on. That the purported good Samaritan came around. He was the Appellant’s friend called Kilungu. He the (friend) pinned her down so that the Appellant could continue raping her. She asked Kilungu why he was letting this happen and continue, he kept quiet. The ordeal happened at night but there were security lights in the vicinity. PW1 also conversed with the Accused person/Appellant.

47. Fortunately, one Mutinda came to her rescue by pulling the Appellant away from her while the friend to Appellant, Kilungu, fled away and the Appellant walked away in full view of some few members of the public who fear the Appellant. Afterwards she was escorted back to the club by Mutinda and other people and closed it down for the night the left for home.

48. The next day, PW1 reported the matter to Machakos Police Station and sought treatment at Machakos Level 5 Hospital. Treatment book marked as PMFI 1, PRC Form as PMFI 2 and P3 Form as PMFI 3. PW1 later recorded the statement at Masii Police Station.

49. In cross examination by the Appellant , PW1 stated that she is a single parent and does not take alcohol and that she reported the incident the following day.PW1 stated that she did not fabricate the case against the Appellant because he turned down his romantic advances.

50. PW2 Mutinda Mutia stated that on the material day 14/11/2018 at 10pm while he was within the Centre he heard a woman scream, looked around and that is when he was told by one Muthama who also works at the Centre told him that the Appellant was raping PW 1. PW2 got concerned and asked Muthama that they go help her. They approached the thicket and he found the Appellant raping PW 1 and that is when the Appellant turned around wanting to beat him up. Then one Kilungu emerged from the from the other direction of the thicket. it appeared he was the Appellant’s accomplice. PW2 feared for his life and screamed for help that is when Muthama and some other [people] emerged causing the Appellant to and his friend to disperse.

51. PW2 and other people escorted PW1 back to work and called the owner of the Club one Wambua and reported the incident to him. He promised to come and assist her the next day which he did by taking PW1 to Machakos Level 5 Hospital. At the time the matter had been reported to Masii Police Station. PW2 said that there were sufficient security lights and the Appellant is a well-known person to him having grown up together. They had never quarreled before.

52. In cross-examination by the Accused person/Appellant PW2 stated that he first heard the scream before rushing to PW1’s rescue. PW2 denied PW1 was his girlfriend.PW2 agreed that they escorted PW1 back to safety to her work place.PW2 was certain, he found the Appellant red-handed in the act.

53. PW3 Police Constable Walter Nyabala gave evidence that he is attached to Masii Police Station and he was the Investigating Officer. He testified that on 24/11/2018 at 10am the OCS handed over to him a case for investigation. He met the Complainant PW2 MMN who informed him that she reported that she was gang raped on 14/11/2018 and he knew some culprits.PW1 stated that she knew the appellant by nickname ‘Masosa’.

54. PW1 told PW3 that she was working at Makutano a bar called Green Bar as Cashier and a Waiter. On 14/11/2018 she went out to look for change and left ‘Musosi’ in the Bar drinking alcohol. On coming back she met Musosi on the way near a thicket, the accused grabbed her and she screamed in that struggle there came another man. The other person was Kiilu/ [Kilungu] she also knew Kiilu. She was forcefully removed her inner pant. In a short while, another 3rd person came and called Muthama came and found the incident and Mutinda came and helped him rescue the Complainant.

55. PW3 investigated the matter by recording witness accounts of the incident and considering the treatment notes that the Complainant received from the hospital, he was satisfied that there was evidence to charge the Appellant, he testified that PRC form it was recorded that the Complainant had fresh bruises in her vagina. He further testified that he charged the Appellant, the persons who witnessed recorded the statements and that there was security lights from the bar and the building near the scene of crime and there was also the moon. The Accused person/Appellant was on the run from that date. He was arrested on 30/6/2019.

56. He further testified that he interrogated the Appellant who told him that he was the boyfriend to PW1 and that on that date he was drunk hence not in a position to tell what transpired. PW1 had told the him that the Appellant had approached her to be lovers but she turned down the request.

57. During cross examination of PW3 by the Appellant, he stated that he received Summons on 15/11/2018 and recorded his statement after the Accused person was arrested. The incident happened on 14/11/2018. He spoke to people and witnesses who had already testified and that PRC form, P3 form and treatment notes support the allegation. The Complainant did not produce the clothes she was wearing. The Arresting Officers came to the Accused Person’s home many times and he was arrested when he resurfaced. Pw3 did sufficient investigations.

Appellant’s Case (defense) 58. The Appellant was the only defence witness and in his sworn testimony the appellant testified that PW1 was an employee of Green Field Bar and on 29/6/2019 he went to the club and found PW1 she was with PW 2 who is PW1’S husband. He sat at the table and he ordered for drinks worth 200/= but gave PW 1 1000/= note and when he finished he demanded his change but she turned against him and claimed he had not given her the 1000/= note. He further testified that PW 2 pushed him out of the club and together they beat him up. He stated that he left for home upon surrendering.

59. He returned the following day for to demand his change and PW 1 called PW 2 who demanded to know what he wanted and PW 2 threatened him. He told them that he will report them to the bar owner. PW2 threatened him that he would know PW2 is a man. He realized PW2 reported that the Accused raped PW1 on a Sunday. He testified that he went to another bar on that day at 2pm, and met PW2 with two police officers who arrested him on allegation that he had raped PW 1. That PW1 came and we sat at the investigating officer’s office who directed us to settle the matter. PWI demanded 50,000/= to settle the matter which the Appellant did not have. He was charged with gang rape without giving evidence of the others in the gang and PW1 stated that it happened before a mob of people which was not possible. The Complainant did not call the other witnesses and the Investigation Officer did not conduct investigations nor did he avail any exhibit to implicate him. That PW1 did not produce any evidence that she got injured. Testifying that the prosecution did not provide any medical evidence to prove the claim of rape. PW1 & PW2 are husband and wife.

60. On cross examination by Prosecutor, the Appellant testified that he went to the bar on 29/6/2019. That it was not his first time. He gave 1000/= note when his bill was 200/= and he went home after PWI refused to return the change and that he was pushed by PW2 and that he fought with PW2. The owner of the Bar is called Wambua Mutiso. There were other 4 clients. He was taken to the Police Station on 30/6/2019 and charged with the offence.

61. After hearing the case from both the prosecution and defence, the learned Magistrate by judgment delivered on 24th January, 2022 found the appellant guilty of the offence as charged. The appellant through Ruling delivered on sentence of 7/3/2022 sentenced to a term of imprisonment of ten (10) years.

Analysis 62. The Appellant posits that the evidence on record did not confirm penetration which a vital component in proving defilement or rape offences.Section 2 of the Sexual Offences Act define penetration as;“penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person;’’Section 10. Gang rapeAny 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.

63. The evidence on record is by PW1 an adult of sound mind that on 14/11/2018 she was accosted by the Appellant after she was led towards him in a nearby thicket. PW1 saw him due to security lights within the vicinity, heard his voice when he called her, they were in close proximity as he accosted her pinned her down and was on top of her as she screamed for help and she struggled to free herself. PW1 knew the Appellant before, she recognized him, by the Appellant’s own defense he patronized the Bar/Club where PW1 worked.PW1 knew him by nickname Musosi. The evidence highlighted above confirms PW1 was raped by the Appellant and shortly thereafter Kilungu/Kiilu who came and was the Appellant’s friend and they both pinned her down.PW2 testified he had screams and came to the scene and found the Appellant on top of PW1 dressed but his trousers were down and Kiilu/Kilungu was holding PW1 down too. He called for help and they came and rescued PW1.

64. In the case of Peter Musau Mwanzia –vs- Republic the Court of Appeal expressed itself as follows:-“We do agree that for evidence of recognition to be relied upon, the witness claiming to recognize a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification by a stranger. He must show, for example, that the suspect was known him for sometime, is a relative, a friend or somebody within the vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing the suspect at the time of the offence, can recall very well having seen him earlier on before the incident. It is not clear whether that is what Mr. Mutuku refers to as basis for recognition.”

65. In Republic vs Jane Muthoni & Isaac Nganga Wambui alias Gikuyu High Court Criminal case No 89 of 2016 [2021]eKLR.J. Ngugi J (as he then was) referred to the case of United States vs Murphy 253 Fed 404, 406 (NDNY 1918) where the US Supreme Court defined Corroboration thus;Corroborating evidence is evidence which is independent of the evidence of an accomplice, and which, taken by itself, leads to the inference, not only that a crime has been committed, but that the person on trial was implicated in it; or it must be evidence which corroborates as to some material fact or facts which go to prove that the person on trial was connected with the crime.

66. This Court finds that the evidence of penetration can be safely discerned from the facts themselves as per the Trial Court record. It is a rare spectacle for sexual relations to carried out in public glare instead they are private. Therefore, it is uncommon for eye witnesses to be available to testify. However, in the instant case, the Appellant was caught red-handed by PW2 and PW1 was rescued by PW2 who pulled the Appellant from top of the Complainant and other people after he called for help. There was security lighting within the vicinity and the Complainant knew the Appellant before the incident. There was sufficient time and the Complainant and the appellant were in close proximity, they talked, PW1 struggled trying to get free and the Appellant and Kiilu/Kilungu held her down. She screamed for help and was rescued by PW2 and others.

67. This Court upholds the Trial Court’s reasoning and finding that the Prosecution proved beyond reasonable doubt that the Appellant penetrated into the private parts of the Complainant on the fateful night. At page 21 Paragraph 54, the Trial Court analyzed the evidence of PW1 PW2 & PW3 and found the lighting in the vicinity was conducive to the positive identification of the Appellant and further the Complainant’s testimony that she knew the Appellant before reinforced the positive identification ruling out mistaken identity of the Appellant. The Trial Court considered also time taken as the Complainant and appellant struggled was sufficient with conducive lighting to identify the Appellant positively.

68. . The Appellant raised the question of lack of medical evidence being adduced during the trial and this fact ought to carry favor as there is doubt on the Prosecution case, whether the Appellant penetrated the Complainant, whether it was intentional and unlawful without the Complainant’s consent and if the commission was with another person.First, Section 143 of the Evidence Act provides;‘No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact’.

70. One, whether, the Prosecution failed to call crucial witness or not, Section 143 of Evidence Act provides for sufficiency of evidence based on a single witnesses’ testimony. In Samuel Kagiri Njuguna v Republic [2016] eKLR the court held that all that the prosecution is required to do is to call such a number of witnesses as it thinks is sufficient to prove its case.

71. Secondly, the Prosecution cannot be instructed on witness (es) to call similarly, the Defense cannot be directed on who to call as witness(es).Each side presents it case and the Court pits the evidence against the law to find out if the Burden and standard of proof are met to establish a prima facie case and/or proof beyond reasonable doubt or not.

72. In the instant case, the Appellant insists that the doctor who examined PW1 was not called to testify and produce P3Form, Treatment Book and PCR Form. They were only marked for identification and not produced as Exhibits and could not be relied on as exhibits.

73. The Court record confirms that from 10/9/2019 when PW2 testified the matter was mentioned severally and adjourned as the Prosecution failed to produce witnesses without explanation but rather excuses, until 3/3/2020 when PW3 testified ,again the matter was mentioned severally and adjourned and the doctor was not availed until 26/10/2021when the Trial Court noted the matter commenced 2/7/2019 and since then the Prosecution failed o bring any witnesses save the 3 upto the said date and the Prosecution case was closed.

74. This court noted with concern that the Appellant raised issue with witnesses not being availed and/or delay of the hearing of the matter as evidenced by the Court record. Secondly, the doctor, being the medical expert to testify on examination treatment or results was not availed and reasons were not addressed to the Court.

75. If the doctor was transferred promoted or had moved from the hospital no attempt by Prosecutor was made to produce medical reports by another doctor who worked or knew the said doctor. Clearly, no meaningful effort was made to avail the doctor and the Court is left to its imagination that the non-production of the doctor was by design and not default.

76. In Court of Appeal in Geoffrey Kioji v Republic, NYR Crim. App. No. 270 of 2010 (Nyeri) where it was stated that;“Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.”

76. The test to be applied inter alia to the principles in the cited cases elsewhere in this analysis is to be found in the case of Bassita v Uganda S. C. Criminal Appeal No. 35 of 1995 where the Supreme Court held:“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victims own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”

78. Although, the doctor failed to testify and the expert medical evidence was crucial to prove the Prosecution case, it was/is not fatal as the law provides recourse under Section 124 of Evidence Act.

79. With regard to Section 124 Evidence Act provides for Corroboration required in criminal cases as follows;“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that 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 person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”

80. The evidence of PW1 who sought medical treatment and reported the matter to the Police the next day after the fateful incident gave detailed report of who and how the incident unfolded.PW2 corroborated PW1’s evidence as an eye witness and both adduced direct evidence. The Appellant was found on top of the Complainant and was removed by PW2. There was no evidence that PW2 knew of the ongoing until, he heard screams and also called Muthama to go the scene. The Complainant also testified she knew the Appellant before the incident he came to the bar she worked in as he admitted in his Defence. The evidence does not suggest any basis for the Complainant to pick on the Appellant amongst many revelers at the bar and fix him with such serious charges if it did not happen.

81. The Accused on the other hand gave his Defence that on 29/6/2019 he went to the Bar took beer for 200/- gave a note of 1000/- and the Complainant refused with the change. On insisting, PW2 took him out and with PW1 beat him up. He went away and came back to claim his change and PW2 threatened him. Later, he was arrested insinuating the animosity of these charges.

82. This Court finds it curious that if the incident happened as the Appellant stated and it was in public in the Bar, there should have been a witness to testify on his behalf. Moreso, if PW1 refused with his change, he knew the owner of the Bar and he ought to have reported her. Thirdly, if he was physically assaulted he ought to have reported the matter to the Police and recorded in the OB and sought treatment and a P3Form filled in. In the absence of any of these steps taken by the Appellant, it is difficult for the Defense to controvert the Prosecution’s case. Contrary to the Appellant’s claim that his defense was not considered it was by the Trial Court at Paragraph 59 of the Judgment of 24/1/2022.

83. This Court finds from the Trial Court record that the Trial Court considered the evidence adduced by the Prosecution witnesses and after outlining legal provisions and principles and case-law analyzed and evaluated the evidence hence a record of reasons why the Court believed PW1 told the truth.

84. The Trial Court at Pg 11 paragraph 33 & 34,Pg 15 Paragraph 38 & 39 Pg 17 Paragraph 45 & 47 & Pg 21 Paragraph 54 &56 & Pg 25 paragraph 59 cumulatively evaluated the evidence of PW1PW2 & PW3 vis a vis the defense preferred by the Appellant and found that the evidence PW1 the victim was the truth.

85. Specifically, paragraph 59 of the judgment, the Court found;‘Whereas I find the evidence adduced by PW1 PW2 & PW3 in this regard consistent and free of material contradictions and thus believable, I have been confronted with difficulties to believe the defense since the animosity relied upon fell on its face on account of contradictory theories advanced by the accused. It emerges through the proceedings regarding the alleged animosity, that the Accused has 3 versions of why he was charged……..this makes the events of 14/11/2018 unequivocally and entirely undefended.’

86. Be that as it may, the appellant referred to Section 150 of the Evidence Act that the Court should have summoned crucial witness(es). The Trial Court record confirms that on 10/9/2019, the Prosecutor sought Summons to be issued which the Trial Court granted. On 3/3/2020, again the Trial Court issued Summons to the Doctor and one Muthama to attend Court and testify but to no avail. So, Section 150 CPC was complied with.

87. The Appellant took the view that evidence was overly inconsistent, uncorroborated and therefore inconclusive to sustain a conviction.

88. The Appellant failed to elaborate what parts of the evidence were inconsistent so as to aid this Court verify the same. However, the uncorroborated and inconclusive evidence is the fact that medical evidence was not availed which is conceded. The law provides that the burden of proof may be accomplished through direct evidence or circumstantial evidence. The fact penetration described by Section 2 of Sexual Offences Act is mere touch private part of the victim by the Assailant. The evidence of PW2 makes a reasonable inference PW2 found the Appellant on top of the Complainant and with his clothes on but trousers down. The victim had her skirt on but the pants were removed. The other person friend of the Appellant helped to pin the victim down with the Appellant as she screamed for help. Secondly these circumstances do not depict consent from /by PW1 she would not have screamed for help or struggled and later reported and sought treatment if she was a consenting adult. The act of touching her in her private parts was unlawful.

89. These circumstances coupled with sufficient lighting enough time as the struggle ensued and the close proximity all lend credence to logical and reasonable inference that PW1 was gang raped the Appellant and Kiilu/Kilungu.

90. Finally, the Appellant stated that he was not accorded a fair hearing under Article 50 (c ) (j) (k) of the Constitution Every accused person has the right to a fair trial, which includes the right- c.to have adequate time and facilities to prepare a defence;j.to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;k.to adduce and challenge evidence

91. The Court record confirms on 16/7/2019, the Appellant was to obtain witness statements from the Prosecutor as per the Court order. On 10/9/2019 when Pw1 testified, the Appellant stated he was ready to proceed he did not raise the issue of Witness Statements.

92. The Court record confirms at each stage a witness testified he was allowed to cross examine the witness.

93. The prosecution case was closed on 12/10/2021 the Court delivered Ruling of Case to answer on 26/10/2021. The Appellant stated he was ready to testify in his Defense it is the Prosecutor who was not ready and the matter was adjourned to 16/11/2021 on which date he was ready to defend himself. The Trial Court record confirms a fair trial was conducted as required by Article 50 CoK2010.

Disposition 94. From the evidence in the Trial Court record, this Court finds that the conviction was safe based on the evidence of PW1 corroborated by PW2 an eye witness who gave direct evidence. The Appellant in his submissions stated he was not appealing sentence only conviction. The conviction and sentence are upheld, the appeal is dismissed.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 27/6/2023. (VIRTUAL/PHYSICAL CONFERENCE)M.W.MUIGAIJUDGEIn the presence/absence:Mr. Evans Mwania Mbithi - for the AppellantMwongera - for the RespondentPatrick - Court Assistant(s)