[2022] KEHC 9939 (KLR)

Mukolwe v Republic (Criminal Appeal E002 of 2021) [2022] KEHC 9939 (KLR) (6 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9939 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal E002 of 2021

PJO Otieno, J

July 6, 2022

Between

Joseph Omutiti Mukolwe

Appellant

and

Republic

Respondent

Judgment

1. In a Judgment delivered on the 4. 4.2018, the appellant was found guilty and convicted for the offence of rape contrary to Section 3 (1) (a) and (c) of the Sexual Offences Act, No. 3 of 2006. He was additionally convicted of the offence of causing grievous harm contrary to Section 234 of the Penal Code. The particulars of the charge set the facts to have been that on the 19. 7.2017 in Wambulishe Sub location within Kakamega County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of IN and in the cause occasioned grievous harm to the said victim.

2. That Judgment was founded upon evaluation of evidence the close of the prosecution supported by six witnesses and defence by the Appellant. The short summation of the evidence is that on the material day at about 8. 00 p.m., the complainant was within her homestead and coming from her kitchen to the main house when she found the appellant standing in her sitting room which was lit by a paraffin lamp on a table. The appellant then grabbed the complainant, fell her down and proceeded to rape her after pulling her underwear out and inserting his private part in hers. She said that she was injured on her back, upper arms, legs, neck and her two teeth were knocked out. The complainant was unable to scream because her mouth was covered. The complainant PW1 therefore produced the green underwear as MFI.1, flowered skirt MFI.2 and one piece of tooth MFI.3.

3. The appellant thereafter fled giving to the complainant the chance to scream and attract the attention of PW2 who came the next morning and escorted the complainant to Khwisero Health Centre where she was treated and P3 as well as PRC forms completed. She showed to court and marked the medical documents being treatment notes, PMFI.4, P3 form MPFI.5 and PRC for PMFI.6. She said having known the appellant as a neighbour who lives about 300 metres away.

4. In cross examination, the witness reiterated that the house was lit with a kerosene lamp which enabled her to see the appellant. She told the court that the appellant strangled her on the neck and she knew him very well because he used to fetch water from her home and their homes are not far apart.

5. PW2 was a lady who called PW1, a mother on clan lines, whose home is about 200 metres from that of the complainant and separated from each by a river from where both families fetch water. She was in her house on the material day at about 11 p.m. when she heard screams coming from the complainant’s home. She slept and the next day caught up with the complainant at the hospital. In cross examination she denied knowing who had molested the complainant.

6. The third witness was a neighbour to the complainant called ESA who told the court that she knows the appellant as well as his father who is a caretaker in a home at Musinde. She was told about the incident by the complainant in the morning of 20. 7.2017. She had gone to fetch water and decided to greet the complainant who he found lying on the floor with red face, missing teeth and other bodily injuries. She identified the skirt the complainant was wearing as well as a piece of teeth which had been knocked off the victim’s gums. The witness took the complainant to Khwisero Police Station where they were advised that the complainant goes for treatment. She identified the appellant as Joseph who was then at the dock but in cross examination confirmed to the court that she did not see him at the scene of incident.

7. Odilia Malika, a clinician based at Khwisero Health Centre, tendered evidence as the forth witness and told the court of having received the victim of rape, one IN, at the health facility on 20. 7.2017. The victim reported having been sexually assaulted by a person known to her the previous night and that over and above the assault which included rape she was beaten and lost two teeth.

8. When examined, the victim was found anxious, experienced pain at the back of the head, had fresh bruises on the face, the right side of the cheek and lips were swollen and there was bleeding from the gum where two teeth were missing. The examination further revealed bruises on the knee, upper hands and arms.

9. Laboratory examination of the specimen from vaginal swab showed dried whitish discharge on the external genitalia and upper thighs, tender vagina with mild fresh bruises, absent hymen and swollen vaginal walls with whitish discharge. She was put on medication to prevent HIV, antibiotic and pain killers after drawing an opinion that she was raped and left with body injuries. She then filed P3 and PRC forms which she produced as exhibits.

10. The witness went on to say that she equally examined the appellant on 27. 7.2017 and formed the opinion that he was about 20 years old and showed no abnormality upon physical examination. She filled P3 form and issued treatment notes which she produced as exhibit P8 and 7 respectively.

11. When cross examined, PW4, told the court that she could not know if it was the appellant who was the attacker because she was just told by the complainant of having been raped and her examination confirmed the complaint of rape.

12. The investigating officer gave evidence as the last witness, PW5, to the effect that he was at the Khwisero Police Station on the 20. 7.2017 when an elderly woman was escorted there by one SM and reported having been raped. She booked the report and escorted the victim, who had visible multiple injuries including two missing teeth, swollen lips as well as bruises on the neck, arms and face. He issued a P3 form which was filled and brought back to the station to help with the compilation of the police file.

13. She then visited the scene and observed that in the homestead there were three homes two of which were abandoned and the last used by the complainant. In the complainant’s house, she recovered a tooth. He drew a sketch plan of the scene and recovered the clothes worn by the complainant on the material date of attack. To the witness, the appellant took advantage of an elderly lady living alone. He went on to produce the inner wear, skirt, teeth and sketch plan as P.Exh, 1, 2, 3, 8 and 9.

14. After the court determined that the appellant had a case to answer, he, the appellant, opted to give unsworn statement without calling any other witness. In his evidence, the appellant told the court that he was at home on the 19. 7.2017 when he was called by the police and village elders, got arrested and taken to the police station. He denied ever assaulting the complainant and that he saw her for the first time at the police station.

15. In a reserved judgment, the trial court having set out the definition of rape under the Act, observed:-“On the issue of identification I find that PW1 as the victim positively identified the accused person since he is someone she knew prior to the attack and that on that night she was able to recognize him because of the light that was in the house emanating from the paraffin lamb.”The trial court was in no doubt that there were favourable conditions by way of lighting to identify the appellant by the complainant as the person who attacked, raped and left her with bodily injuries.

16. Upon the court’s reappraisal and reevaluation of the evidence led, and in the endeavour to reach own conclusions in the matter, it is appreciated that the grounds of appeal attack the decision for having been made in non-compliance with article 50 (2) (g), (h), (i) and (j) and that evidence did not establish the guilt of the accused beyond reasonable doubt it being contended that some prosecution witnesses offered testimonies which exculpated the appellant; that there were contradictions that deserved being resolved in favour of the accused; failure to link the appellant with penetration and lastly that the conviction was against the weight of evidence as the evidence by the appellant was never accorded due considerations.

17. The conviction of the appellant was on both rape and grievous harm. Both demanded that the accused be link with the attack on the victim.

18. For rape, the offence is committed only where the prosecution proves that the accused intentionally and unlawfully penetrates the genital organ of the victim with his own genital; without the consent of the victim or with the consent obtained forcefully or by means of threat or intimidation of any kind. The statute sets ingredients of the offence therefore demand that the prosecution proves penetration of the complainant, without her valid consent, by the accused.19 Accordingly, the task of the court in this appeal must centre around proof of penetration by the appellant of the complainant’s genital devoid of her consent. For the conviction for causing grievous harm, the task is whether the appellant was positively identified as the attacker.

20. On identification, the evidence of the victim was never materially challenged that he was able to recognize the appellant with the aid of a kerosene lamp on the table which lit the entire house. She was consistent that the appellant was well known to her as well as his father with whom he lived. It was not the first time the victim was meeting the appellant because in cross examination she told the court that she had been seeing the accused go to fetch water. The court finds that the evidence on record was not so much of identification but rather recognition and relies on the decision in Wambugu –vs- Republic [1989] KLR 424 for the position of the law that even in cases of identification the court is enjoined to scrutinize the evidence keenly to satisfy itself of absence of prospects of mistaken identity before it can safely convict. It is also the law that evidence of recognition is more assuring, more reliable and more satisfactory. See Anjononi &others –vs- Republic [198] KLR 57.

21. This court like the trial court finds that there was ample light in the room to help with safe and accurate recognition of the appellant. It is therefore the finding of the court that there was sufficient evidence that proved beyond reasonable doubt that it was the appellant who the complainant found standing in her sitting room, the person who strangled her, laid her to the ground and assaulted her both physically and sexually.

22. On the question of penetration the evidence of the complainant remained cogent that the appellant fell her down, removed her underwear out and inserted his genital into hers. That evident was sufficient under Section 124 (2) of the evidence to sustain a conviction if cogent. Before the trial court, there was additional evidence by not only PW3 and PW5 who saw whitish patches and blood on the complainant’s clothes and further supported by the evidence of PW4 who examined the complainant and observed bruises on her vagina with whitish substances around her vagina and upper thighs. In addition laboratory examination found sperm cells in the swabs taken from the vagina. This court find that penetration was equally proved beyond reasonable doubt and that the conviction on the offence of rape was safe and supported by sufficient evidence.

23. What of the offence of causing grievous bodily harm? That offence is created by the provisions of Section 234 of the Penal Code. The statute say the offence is committed when one does grievous harm to another. The statute defines the expression grievous harm to mean any harm which amounts to maim or dangerous harm, or seriously or permanently injures health.

24. The evidence recorded revealed among other injuries the loss of two teeth by the complainant out of the assault. The court has found and held that it was the appellant who assaulted the complainant and inflicted the injuries revealed by the evidence of PW4 and the medical documents. It is therefore the consequent finding by the court that the removal of two teeth amounts to grievous harm for the loss is permanent disfigurement to the complainant. The inevitable conclusion is therefore that the appellant was properly convicted based on sufficient and adequate evidence. The appeal on conviction lack merits and is dismissed in entirety.

25. Even though none of the grounds of appeal attack the sentence meted out, the court on its mandate is obligated to interrogate if the sentence was indeed appropriate and lawfully. I have undertaken that mandate and come to the conclusion that while the trial court was entitled to mete out upto life sentences, for both offences separately, the imprisonment terms imposed were very modest and lenient. There is no justification to interfere even with the sentence.

27. The upshot is that the appeal on both conviction and sentence is bereft of merit and the same is therefore dismissed.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 6TH DAY OF JULY 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:The Appellant in personMr. Mboozo for Chala for the Respondent/DPPCourt Assistant: Kulubi