[2022] KEHC 14924 (KLR)

MG v Republic (Criminal Appeal E024 of 2022) [2022] KEHC 14924 (KLR) (2 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14924 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E024 of 2022

LM Njuguna, J

November 2, 2022

Between

MG

Appellant

and

Republic

Respondent

(Being an appeal against the sentence and conviction by Hon. W. Ngumi - PM in Siakago SPM Sexual Offences Case No. E019 of 2021 delivered on 28. 02. 2022)

Judgment

1. The appellant was charged with the offence of rape contrary to section 3(1)(a)(c) and 3 of the sexual Offences Act, in Sexual Offences Case No. E019 of 2021, at Siakago. The particulars of the offence were that, on the 11. 04. 2021 in Mbeere North sub-County within Embu County intentionally, and unlawfully caused his penis to penetrate the vagina of MAK by use of threats.

2. He also faced an alternative count of committing an indecent act with an adult contrary to section 11(A) of the Sexual Offences Act No. 3 of 2006.

3. The case proceeded to full hearing and in a bid to prove its case, the prosecution called three witnesses and upon the close of the prosecution’s case, the appellant was placed on his defence following which, he gave sworn evidence and called one witness in support of his defence. The learned magistrate vide a judgment delivered on the February 12, 2022 convicted the appellant and he was sentenced to serve fifty (50) years imprisonment.

4. The appellant being dissatisfied with the conviction and the sentence appealed against the judgment and has listed the following grounds of appeal.1. The learned magistrate erred in law and facts by convicting the appellant on a defective charge sheet.2. The learned magistrate convicted the appellant on the basis of unsatisfactory and unreliable evidence.3. The learned magistrate erred in law and facts by rejecting the appellant’s defence without giving cogent reasons.4. The learned magistrate erred in law and facts by imposing a harsh and excessive sentence upon the appellant.

5. He urged the court to allow the appeal, substitute the sentence with the least severe punishment as prescribed under the Sexual Offences Act.

6. The appeal was disposed of by way of written submissions. The appellant submitted that the trial court did not use its discretion judiciously as he was alleged to have been in possession of a bladeless knife which was harmless. That the prosecution did not produce previous criminal record to show that he was not a first offender as purported by the trial magistrate. Further that the victim impact assessment report was biased and that the appellant was a repeat offender. He urged the court not to rely on that report and take into account his mitigation and the principles of sentencing.

7. On the part of the respondent, it was submitted that the elements of the offence of rape were proved and therefore the appeal has no merit.

8. The court has considered the grounds of appeal and the submissions filed herein. As already stated, the appeal is on both conviction and the sentence.

9. The duty of this court being the first appellate court was set out by the Court of Appeal in Okeno vs Republic [1972] EA 32 and re-stated in Kiilu &anothervs Republic[2005] 1 KLR 174 where it was held that the evidence as a whole is to be exposed to a fresh and exhaustive examination, and thereafter the court should draw its own conclusions. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses. Further, the court should be alive to the principle that a finding of fact made by the trial court shall not be interfered with, unless, it is based on no evidence or on a misapprehension of the evidence or that the trial court acted on the wrong principles. (See Gunga Baya & AnothervsRepublic [2015] eKLR).

10. It must be appreciated that under Section 107(1) of the Evidence Act, the burden of proof is on the prosecution to establish every element in a criminal charge beyond any reasonable doubt. This was well buttressed in the principle in the cases of Woolmington vs DPP [1935] AC 462 and MillervsMinister of Pensions2 All 372 - 373.

11. The appellant herein was charged with the offence of rape contrary to section 3(1)(a)(c) and 3 of the Sexaul Offences Act No. 2 of 2006. Section 3 provides;(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; orc.The consent is obtained by force or by means of threats or intimidation of any kind.(2)In this section, the term “intentionally and unlawfully” has the meaning assigned to it in section 43 of the Sexual Offences Act.Section 43;1. An act is intentional or unlawful if it is committed –a.In any coercive circumstanceb.Under false pretences 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 sub-section (1) (a) include any circumstances where there is –a.use of force against the complainant or another person or against property of the complainant or that of any person.b.threat or harm against the complainant or another person or against the property of the complainant or that of any other person; orc.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 an act, or his or her unwillingness to participate in such an act.

12. In her evidence the complainant testified that on the April 11, 2021 at 11. 00 pm she was at home sleeping when she heard a bang on the door. That within no time, someone sat on her and placed a knife on her neck. The appellant started removing her clothes and as she tried to scream she could not scream. She struggled with the appellant who is her brother, but he overpowered her and raised her dress, after which he removed his trouser and started raping her as he lay on her. He inserted his penis on her vagina and raped her three (3) hours from around 11. 00 pm – 2. 00 am in the morning. He also tried to penetrate her through her anus but in the process, the knife fell off and that is when she started to scream and as the appellant was looking for the knife she got an opportunity and run away. She went to a neighbour called Macharia where she spent the rest of the night. At around 6. 00 am she went to Siakago police station where she reported the incident and recorded her statement.

13. She was referred to the hospital at Siakago where she was examined as she had been injured on the breasts, the throat and her private parts. She was issued with a P.3 and PRC forms. It was her evidence that the appellant had raped her on another occasion and this was the second time that he was doing so.

14. PW4, John Mwangi a clinical officer at Mbeere District Hospital examined the complainant. On examination, she had linear bruises on the left side of the neck, the right breast was swollen and had tender bruises with teeth marks. She had several bruises on the right thumb and the injuries were one day old. She had an old perforated hymen and there was reddish vaginal discharge and spermatozoa cells; bacteria and also pus cells. The clinical officer concluded that there was penile penetration as evidenced by the presence of spermatozoa. He also testified that from the injury sustained, there was evidence of resistance. That the red vaginal discharge was an indication that there was internal damage to her genitals as she was not in her menses.

15. From the evidence of the complainant and that of the clinical officer, it is evident that somebody penetrated her genital organs with his penis on the night of April 11, 2021. It is also clear that the said penetration was done without her consent but rather the same was done by means of threat.

16. The assailant whom she identified as her brother was armed with a knife on the material night which he used to threaten her by placing it on her throat. It was her evidence that she struggled with the appellant but he overpowered her, raped her and in the process she sustained multiple injuries which were confirmed by PW4 in his evidence. Infact, PW4 stated that there was evidence of resistance, going by the injuries that the complainant sustained.

17. The complainant was able to identify the appellant as the person who defiled her on the material night. Though she stated that her assailant had worn a cap, she could see his face as it was not covered and he knew him prior to this incident as he is her brother. That there was sufficient lighting in the room as the electricity lights were on. Further, on the same night after she managed to escape, she went to seek refuge in the house of PW2 who is her sister and she told her it was the appellant who had raped her. This was just a few minutes after the ordeal and her memory was still fresh. When she reported the matter to the police she gave the name of the appellant as her assailant on the material night.

18. When he was placed on his defence, the appellant denied having committed the offence and called a witness namely JKM who is also his sister. According to the appellant, he was at DW2’s house at the material time and he was not anywhere near the complainant’s house.

19. As rightly observed by the trial magistrate, the evidence by the appellant was inconsistent and the court formed the opinion that he was not telling the truth. He told the court that, on the material day, he spent the night at her sister’s place and he gave the name of the sister as CK an but called a witness namely JKM as his witness who testified that he went to her place on April 12, 2021 at Mbingori.

20. The court also notes that the appellant gave contradicting evidence on the time and the dates he alleges he went to her sister’s place. At first he said it was 8. 00 pm but later changed the time to 2. 00 pm. The sister purported that he had been at her place on the April 12, 2021 yet the offence is alleged to have been committed on the 11. 04. 2021.

21. It is my considered view that the defence by the appellant could not withstand the strong evidence that was adduced by the prosecution. The identification of the appellant was above board in that he is a brother to the complainant, he entered her house and the lights were on, and therefore, there is no way the complainant could have failed to identify him. The identification though by a single witness was free from any possibility of error as it was indeed evidence of recognition of a person whom the complainant had known all her life.

22. The appellant also contended that the sentence imposed on him is harsh and excessive. In this regard, the appellant was charged under section 3(3) of the Sexual Offences Act which stipulates a sentence of imprisonment for a term which shall not be less than 10 years but which may be enhanced to imprisonment for life. The appellant herein was sentenced to fifty (50) years imprisonment.

23. The legal position on sentencing was stated succinctly by the Court of Appeal for East Africa in the case of Ogola s/o Owoura Vs Reginum (1954) 21270 as follows;The principles upon which an appellate court will act in exercising its jurisdiction to review the sentences are firmly established. The court does not alter a sentence on the mere ground that if the members of the court had had been trying the appellant they might have passed a somewhat different sentence, and it will not ordinarily interfere with the discretion exercised by the trial judge unless, as was said in James vs Republic (1950) 18 EACA 147. “It is evident that the judge had acted upon some wrong principles or overlooked some material factors.”To this, we would also add a third criterion namely that the sentence is manifestly excessive in view of the circumstances of the case R vs Shershewky (1912) CCA 28 TLR 364”.

24. I have read the submissions by the appellant, he has not shown how the trial court erred in principle in imposing the sentence of 50 years. It is trite that sentencing is at the discretion of the trial court unless it has been shown/proved that the trial court did not exercise its discretion judiciously or it erred in principle.

25. I have considered the circumstances under which the offence was committed. I have also perused the victim’s impact report and the aggravating circumstances. The appellant is the biological brother of the complainant who raped her while armed with a knife. He demanded to have sex with her or kill her and raped her while placing a knife that he had, on her neck, and threatening to slit open her throat. The complainant was so frightened by the occurrence that she had to leave home.

26. Further, from the evidence of the complainant, it was not the first time that the appellant was raping the complainant, with the mother and her siblings supporting the abuse. Ordinarily, a brother should be protective of a sister but in this case, he turned out to be the aggressor in the most inhuman manner, to an extent of threatening her with a knife as he committed the heinous crime. I agree with the learned magistrate that a deterrent sentence is most suitable.

27. In the end, I find that the appeal has no merit and I hereby dismiss the same.

28. It is so ordered.

Delivered, dated and signed at Embu this 2nd day of November, 2022. L. NJUGUNAJUDGE.................for the Appellant.................for the Respondent