[2022] KEHC 14245 (KLR)

Muliga & another v Republic (Criminal Appeal 101 of 2019) [2022] KEHC 14245 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14245 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal 101 of 2019

PJO Otieno, J

October 13, 2022

Between

Dennis Muliga

1st Appellant

Dennis Mbulika alias Kasirwa

2nd Appellant

and

Republic

Respondent

(Being an appeal from the conviction and sentencing of Hon. Dennis Ogal, SRM in Hamisi Cr. Case No. 1317 of 2018)

Judgment

1. The appellants and another were arraigned before the Senior Resident Magistrate at Hamisi in Cr Case No 1317 of 2018 charged with four counts relating to robbery with violence contrary to section 295 as read with 296 (2) and gang rape contrary to section 10 of the Sexual Offences Act. No 3 of 2007.

2. Count 1, was the charge of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code. The particulars of the offence were that on the 22nd day of October, 2018 around 0035hrs in Sabatia sub county within Vihiga county, the appellants with others not before court, being armed with dangerous weapons namely pangas and metal bars robbed VM one TV make Samsung (32’) valued at Kshs 23,000/-, mobile phone make Itel valued at Kshs 1300/-, mobile phone make Nokia valued at Kshs 1000/-, Dvd player make Sonitech valued at Kshs 6000/-, sub-hoofer valued at Kshs 6000/-, iron box valued at Kshs 2500/-, eleven chicken valued at Kshs. 11000, gas cylinder 6kg valued at Kshs 5000/- and one panga valued at Kshs 350, all valued at Kshs 56,150/- and at/immediately before the time of such robbery threatening to use actual violence to the said VM.

3. Count ii also had the charge of robbery with violence contrary to section 295 as read with 296(2) of the Penal Code. The particulars of the offence are that on the 22nd day of October, 2018 around 0035hrs in Sabatia sub county within Vihiga county, the appellants with others not before court, being armed with dangerous weapons namely pangas and metal bars robbed CM one mobile phone make Tecno is valued at Kshs 4999/- and at/immediately before the time of such robbery threatening to use actual violence to the said CM.

4. Count iii and iv were separate and distinct charge of gang rape against the 1st and 2nd appellants respectively contrary to section 10 of the Sexual Offences Act No 3 of 2007. The particulars of the offence are that on the 22nd day of October, 2018 around 0035hrs in Sabatia sub county within Vihiga county, the 1st and 2nd appellants, in association with others, intentionally and unlawfully caused their penis, one after the other, to penetrate the vagina of CM without her consent. There was then the alternative charge of handling stolen goods contrary to section 322 (1) of the Penal Code. Particulars being that on the October 22, 2020 at [Particulars Withheld] Village other than in the course of stealing, dishonestly received and retained one mobile phone, make ITEL, valued at Kshs 1,300/= knowing or having reason to believe to be stolen good.

5. The appellants pleaded not guilty to all the charges and the case proceeded to full trial during which the prosecution called a total of nine (9) witnesses while the appellants opted to give sworn testimonies without calling any other witnesses. Their co-accused was however acquitted.

6. PW1, VM, testified that he was a pastor with PAG and that on October 22, 2018 at around 12:30am he was in the house with his wife when they heard a loud band at the door. He heard someone cock a gun and then two men walked him to the bedroom, took his phones and tied him up. He had been separated from his wife at the time and once the robbers left his wife untied him and informed him that she had been raped by two of the thugs. They called the assistant chief and when he came it is when they noted that the thugs had made away with other items from the house.

7. On cross-examination he stated that he was not able to identify the robbers.

8. PW2, CM, testified that she was the wife to PW1. She reiterated the statement by PW1 and further stated that during the attack the thugs had torches and she was able to see three men take their phones. One had a crowbar, the other a torch and the other a panga. When she was separated from PW1 one of the attackers asked her to remove her clothes and raped her while the other was shoving the torch around the room. The second attacker also raped her and then tied her loosely. After they left she untied her husband and walked to the neighbors for assistance who in turn called the assistant chief.

9. On cross examination by the 1st appellant, she stated that she was able to see him from the torch light and that one of her rapists wore faded jeans with a grey jumper while the other wore a black trouser, a black jumper and a black marvin.

10. On cross examination by the 2nd appellant she repeated that she saw the appellants very well on the night of the attack and that the 2nd appellant was wearing a grey jumper and faded jeans while the 1st appellant wore a marvin.

11. PW3, Douglas Muhonga, a clinical officer at Iguhu sub county hospital testified that PW2 was examined at the hospital on October 22, 2018 and examination revealed that her vulva was red, there were a few lacerations with no blood thus arriving to the conclusion that she had been raped. He further stated that her urine had epithelial cells a sign that there was friction on the vagina.

12. PW4, Mary Musimbi, testified that she was arrested on November 29, 2018 after being found to be in possession of a black Tecno which belonged to her mother. She did not know where her mother got the phone from.

13. PW5, VI, and mother to PW4 testified that in the month of October 2018, the 1st appellant visited her shop and sold to her a Tecno phone for Kshs 2500/-. He gave him the money and saw him leave with the 2nd appellant. She later gave the phone to PW4.

14. On cross examination she confirmed to know the appellants well and stated that she did not know that the phone had been stolen.

15. PW6, No 2xxx7 Charles Kamau testified that he conducted the identification parade for the appellants. On December 2, 2018 between 1pm and 2pm, he did an identification parade for the 1st appellant who wished to have his brother EL present. He invited 8 people of similar stature with the 1st appellant and the 1st appellant stood between 3 and 4. He was identified by PW2 by way of touching and did not object to the parade and signed the identification parade form.

16. The parade for the 2nd parade was conducted at Mbale police station where he took 9 people of similar stature to that of the 2nd appellant. The 2nd appellant stood between 3 and 5. He was identified by PW2 by way of touching him. All the accused did not object to the parade but signed the identification parade forms which were produced as exhibits P1, P2 and P3. Nothing critical came out of cross examination.

17. PW7, James Makobi, testified that he worked with Safaricom Law Enforcement Liaison office and that on November 30, 2018 he received a letter from the DCI Sabatia requesting for call data records for two imei numbers. The 1st Imei, 3xxxx0,240,540 was used from November 16, 2018 by a sim card registered in the name of Rashid Chegero and the 2nd imei, 3xxxx2, was used on November 2, 2018 by a sim card registered in the name of Mary Musimbi Agosa, PW4. He produced call data for the two phones as P.Exh 14 and 15.

18. PW8, No 8xxx8 PC Joshua Mwania testified that he was the investigating officer and that on October 25, 2012 he received PW1 in his office complaining that he had been attacked in his house on October 22, 2018 by people armed with pangas and rungus who stole items from his house and raped his wife. He recorded the statements of PW1 and PW2 and began to track the two tecno phones stolen from them and with the help of PW7 he arrested PW4 and recovered in her possession Tecno si. PW4 claimed to have gotten the phone from PW5. PW5 stated that she had bought the phone from the 1st appellant for Kshs 2500 who on leaving was in the company of the 2nd appellant. The 1st appellant was arrested and admitted to having received the phone from the 2nd appellant whom after selling gave him a commission of Kshs 100. He stated that an identification parade was later conducted and the appellants were identified by PW2. The second phone was recovered from the 3rd accused who was however acquitted.

19. On cross examination he stated that though one of the phones was found to be in possession of a woman, PW1 and PW2 had indicated that they were robbed by men and that it is PW5 who led to the arrest of the appellants.

20. PW9, Anne Moraa testified that she was present when the appellants visited her mother’s (PW5) shop and sold her a tecno phone for Kshs 2500. On cross examination by the 1st appellant, she stated that she knew him very well and that there had not been any allegation that she had been impregnated by the appellant. The prosecution’s case was then closed and the court determined that the appellants had a case to answer.

21. The 1st appellant gave sworn evidence and refuted the charges by testifying that on November 29, 2018 he was arrested when coming from a drinking den. He faulted the identification parade by stating that his picture was taken before hand, the lineup had 5 people and that he did not sign the identification parade form. He stated that he was charged because of differences he had with PW5 over PW9 getting pregnant and PW5 forcing him to acknowledge a pregnancy which he was not responsible for.

22. On cross examination he stated that on October 22, 2018 he was asleep at his parents’ house though he did not call his parents as witnesses.

23. The 2nd appellant testified that he was a carpenter and that on November 1, 2018 while splitting wood it fell into a farm and could not agree on compensation with the owner of the farm. He was arrested and remanded. His photo was taken before he was taken for an identification with 7 people who were not of the same stature and color as him only to be informed that the complainant had identified him. On cross examination he stated that on October 22, 2018 he was at a house belonging to a lady who was in Mombasa at the time. That lady was however not called as a witness.

24. Judgment was subsequently delivered and the two appellants were convicted and sentenced to 30 years’ imprisonment for count i and ii and 15 years’ imprisonment for count ii and iv with the sentences to run concurrently.

25. Dissatisfied with the judgment and sentencing, the appellants have filed this appeal premised on the following grounds: -“a)That the trial court erred in law by relying on the evidence of dock identification without noting that no parade identification was conducted by the police or the first report made by the complainant did not contain any information that could disclose the assailants.b.That the trial magistrate failed to consider that the evidence adduced in court was insufficient to prove the charge of gang defilement.c.That the trial magistrate erred in law and facts by relying on the prosecution’s evidence that was marred with contradictions and inconsistent to convict us.d.That the trial court erred in law and facts by convicting and sentencing us without putting into consideration that nothing linked us medically with the alleged offence.e.That the trial court failed to give our defense statement due consideration despite the fact the same was not challenged by the prosecution case.”

Submissions Offered 26. An appraisal of the goods disclose that the appeal only challenges conviction and not sentence. However, it is not that the judgment only show conviction for counts 1, 2 and 3 but at sentencing, the two were sentenced for count iv as well. That sentence must be set aside for not being based on any conviction.

27. The appeal has been canvassed by way of written submissions by which the appellant contents that the complainant failed to given a description of the attackers when making the first report and that the lighting at the time of the identification parade was not similar to the one at the night of the alleged attack to make conditions favourable for identification.

28. The trial court was equally faulted for failure to call critical witnesses and for convicting the appellants when they were not subjected to medical examination to link them to the offence.

29. He further submits that he was not subjected to medical examination to determine if he sexually assaulted PW2 and that the evidence of PW2 and PW2 was contradictory with the trial court rejecting his defence and thus the prosecution failed to prove its case beyond reasonable doubt.

30. Lastly, the evidence by prosecution was ...... inconsistent and therefore the case was not proved beyond reasonable doubt.

Respondent’s Submissions 31. It is the submission of the respondent that failure by PW2 to describe her assailants at the initial reporting is not fatal to a case provided the identification is free from error and that the appellant is a person the complainant can recognize when lined up in an identification parade. They cite the case of Peter Ochieng v Republic(2016) Eklr and Nathan Kamau Mugwe v R(2009) eKLR citing the Court of Appeal in Nathan Mugure v Republic for the proposition that failure to describe the suspect before parade does not invalidate the parade.

32. The respondent further submits that an identification parade was properly conducted contrary to the assertion by the appellants and that there is no requirement in law that the accused persons be medically tested to prove gang rape. The respondent point out that the appellants have not sighted the contradictions and inconsistencies in the prosecution’s case and that the ground the trial failed to consider the evidence of the appellants is untrue.

Issues 33. This court has considered the grounds of appeal, the proceedings of the lower court and the submissions by both the appellants and the respondent and discerns the following issues to emerge for determination: -a.Whether prosecution witness had conducive environment to positively identify the appellants.b.Whether the offence of gang rape was proved beyond reasonable doubt against the appellantsc.Whether the evidence by the appellants was considered by the trial courtd.Whether the testimonies by the prosecution witnesses were marred with contradictions and inconsistencies

Analysis 34. It is settled law that before a court can convict based on visual identification at night, such evidence should be treated with greatest care and the court ought to be satisfied that the circumstances for identification were favorable and free from error.11Wamunga v Republic (1989) KLR 424

35. According to PW2, she was able to identify the appellants using the light emanating from the torches they had on the night of the attack. She was also able to describe how her assailants had dressed by stating that one was wearing some faded jeans with a grey jumper and the other a black normal trouser, black jumper and a black marvin.

36. Likewise, PW2 stated that she was raped by the appellants during the attack. In doing the act their bodies inevitably locked and the appellants came close to PW2 for her and during this action PW2 was able to identify them. For the reason that the appellants had a torch which they shoved around and the proximity between the appellants and PW2 at the time of rape, I am satisfied that the conditions at the house of PW2 at the night of the robbery were favorable for proper identification.

37. On the need for PW2 to give a description of her assailants at the time of making the initial report, it is not worthy that PW2 was explicit that she did not know how the appellants were arrested. That no description of the appellants was not given to the police did not arise in evidence and cross examination. Had it arisen may be the prosecution would have got a chance to deal with the matter. It is thus a matter that is not on record and not available for consideration by the court.

Whether the offences of Robbery with Violence and gang rape was proved beyond reasonable doubt against the Appellants 38. As defined, the offence of robbery with violence is committed when the offender being armed or when in company of one or more persons robs the victim and at, immediately before or immediately after the robbery he wounds, beats, strikes or uses other personal violence on any person2. In this appeal, that several property belonging to PW1 and 2 as a couple and complainants in counts 1 and 2 were stolen on the night of October 22, 2018. The evidence of PW2 places the two appellants at the scene and shows that they both used the personal violence upon PW2 by way of forceful and non-consensual sex. The evidence is clear that the appellants were acting in concert were in fact armed with a crow bar and a panga. Where any of the three ingredients is proved the prosecution’s burden is discharged. In this matter however the prosecution did prove the three ingredients and identified the two appellants as the villains. I do find therefore that the conviction by the trial court was not only safe but also properly guided on the evidence as applied to the law.2Oluoch v Republic [1985] eKLR

39. Section 10 of the Sexual Offences Act defines the offence of gang rape as follows: -“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.”

40. PW2 testified that she was asleep with her husband when their door was forcefully opened and the attackers came in. She described how she was taken away by two of the attackers who took turns raping her. She was the only eye witness on the rape and this court is cognizant of the proviso of section 124 of the Evidence Act which provides that the evidence of a sexual offence victim need no corroboration by stipulating as follows: -“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.”

41. Nonetheless, it was the medical evidence of PW3 that upon examination of PW2, her vulva was red with a few lacerations, an indication of rape. He further stated that her urine showed existence of epithelial cells that showed there was friction on the vagina. There was thus sufficient evidence, beyond reasonable doubt that PW2 was raped. That leave the next question to be whether the two appellants were connected to the offence. The evidence by PW2 was consistent, credible and cogent that he was able to properly identify the assailants as they continued to flash their torches carelessly in the room. I find that evidence to be unassailable and sufficient to found the conviction. Sufficient to find the conviction because it places the two appellants at the scene and identifies them as the attackers.

42. This court thus finds that the prosecution proved the charge of robbery with violence contrary to section 295 as read with 296 (2) of the Penal Code as well as gang rape contrary to section 10 of the Sexual Offences Act against the appellants beyond reasonable doubt and that the conviction deserves no disturbance.

Whether the evidence by the Appellants was considered by the trial court 43. A look at the page 17 of the judgment by the trial court shows that the defence offered by the appellants was considered. The court notes;“In this matter the 1st and 2nd accused offered no explanation and as such the court is at liberty to draw an inference that the 2 were the ones who robbed PW1 and PW2. I have reached a finding based on the evidence touching on the phone and PW2 identification of accused 1 and 2. The 2nd accused failed to give an account of what transpired in PW5 home. He was seen there by PW5 and PW9. He was in the company of the 1st accused when he tried to sell the phone to PW9. He therefore knew of the phone. I am of the opinion that his failure to explain what transpired means that he was in cahoots with the 1st accused. He was his accomplice.”Contrary to the challenge by the appellants, I do find that the trial court not only considered the defence evidence but did so with alacrity and in commendable details.

44. Accordingly, for the reasons set out above, I find this appeal to lack merit and the same is hereby dismissed. However, the sentence against the appellants for count 4 is set aside for being grounded upon no conviction.

Dated, signed and delivered at Kakamega, this 13th day of October 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:The Appellants are in person from PrisonMiss Chala for the RespondentCourt Assistant: Polycap Mukabwa