[2022] KEHC 13943 (KLR)

Munyi v Republic (Criminal Appeal E030 of 2022) [2022] KEHC 13943 (KLR) (4 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13943 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E030 of 2022

LM Njuguna, J

October 4, 2022

Between

Isaac Kariuki Munyi

Appellant

and

Republic

Respondent

Judgment

1. The appellant herein was charged with the offence of rape contrary to section 3(1)(a)(b) as read with section 3(3) of the Sexual Offences Act No 3 of 2006. The particulars are that; on the April 3, 2020 at around 2200 hours at [particulars withheld] village in Embu North sub-county within Embu County, intentionally and unlawfully caused his penis to penetrate the anus of PMM without his consent.

2. He also faced an alternative charge of committing an indecent act with an adult contrary to section 11(A) of the Sexual Offences Act; the particulars being that on the April 3, 2020 at around 2200 hours at Njuguri village in Embu North sub-county within Embu County, intentionally and unlawfully touched the anus of PMM with his penis against his will.

3. He denied the charge and the case proceeded to full hearing during which the prosecution called five (5) witnesses in support of its case. At the close of prosecution’s case, the appellant was put on his defence and he gave a sworn statement. The learned magistrate after hearing the case delivered his judgment on the January 18, 2022 and convicted the appellant and on the January 25, 2022 he was sentenced to 20 years imprisonment.

4. Being dissatisfied with both the conviction and the sentence, he appealed to this court vide his petition of appeal dated the February 17, 2022 wherein he has set out five (5) grounds of appeal.

5. When the appeal came up for hearing, the same was disposed of by way of written submissions.

6. In his submissions, the appellant submitted that he was prejudiced, when the complainant testified through an intermediary who is the appellant’s cousin and who could easily frame him up.

7. He further submitted that the trial magistrate erred by failing to consider that there was a persisting grudge between the appellant and PW1, PW2 and PW3 and thus the said witnesses were biased against him.

8. It was also his submission that his defence was not considered by the trial court. That the clinical officer could not medically link him with the alleged rape and that there were no human semen or spermatozoa in the complainant’s anus when he was medically examined and hence the conclusion by PW4 Dennis Mwenda, a clinician was biased. Further that the sentence of 20 years was harsh and excessive and the same contravenes article 50(2)(p) of the Constitution. He urged the court to allow the appeal on both conviction and sentence.

9. On the part of the respondent, it was submitted that the appellant was properly identified as he is the brother to the complainant and the same was corroborated by PW2 and PW3, the sister and the mother of the appellant respectively. It was further submitted that the appellant was accorded a fair trial and that the alleged grudge between the parties was not substantiated and the same was disputed by PW1, PW2 and PW3. On the issue of the charge sheet being defective, the respondent relied on sections 137 and 382 of the Criminal Procedure Code. The respondent further cited the case of Samuel Kalonzo Musau v Republic Criminal Appeal No 153 of 2013 and that of George Njuguna Wamae Vs Republic Criminal Appeal No 417 of 2009 and submitted that the appellant has not demonstrated how the charge sheet was defective.

10. The court has considered the grounds of appeal, the submissions by both parties and has also re-evaluated and re-analysed the evidence that was adduced before the trial court as it’s expected of this court being the first appellate court (see the case of Okeno v Republic [1972] EA 32).

11. The appellant herein was charged with the offence of rape contrary to section 3(1) (a)(b) of the Sexual Offences Act No 3 of 2006.

12. The ingredients of the offence of Rape are;1)Proof of penetration

2)Positive identification of the appellant

3)Absence of consent

4)The consent is obtained by force or by means of threat or intimidation of any kind.

13. On proof of penetration, the complainant testified through an intermediary after the court was told and established that he has severe mental illness and was not able to give evidence. Section 31 of the Sexual Offences Act is on vulnerable witnesses and it provides;31)A court in criminal proceedings involving the alleged commission of a sexual offence, may declare a witness, other than the accused, who is to give evidence in those proceedings a vulnerable witness if such a witness is: -a)The alleged victim in the proceedings pending before the court’b)………c)A person with mental disabilities.31(4)Upon declaration of a witness as a vulnerable witness in terms of this section, the court shall subject to the provisions of sub-section (5), direct that such a witness be protected by one or more of the following measures;a)………b)Directing that the witness shall give evidence through an intermediary.

14. In the case herein, the intermediary told the court that the complainant has had mental problems from 1986 when he cleared secondary school. According to him, the incident took place in the complainant’s house where he used to sleep. That the appellant sodomised the complainant and he used force. That the complainant mother heard him screaming and when she tried to rescue him, she was threatened by the appellant and had to run back to her house.

15. The complainant was examined at Embu Level 5 Hospital and the examination confirmed that he had been sodomized.

16. PW2 who is the appellant’s sister testified that she was called by her mother PW3 who informed her that she had heard noises from the complainant’s house and that the appellant had sodomized his brother, the complainant in this case. She went to her mother’s home the following morning and they both reported the matter at Kairuri police post. The complainant was later taken to hospital and the examination confirmed that he had been sodomized.

17. The mother to the complainant and the appellant testified as PW3. It was her evidence that on April 3, 2020, the appellant went to the complainant’s house and she heard the complainant asking the appellant “why are you touching me? have I become your wife?” She asked the appellant what he was doing in the complainant’s house and he responded that their graves are ready and he will kill her and the complainant. The appellant then left and went to his house. The complainant said he had been sodomized by the appellant and PW3 reported the incident to the police the following day.

18. The evidence of the complainant through intermediary on penetration was corroborated by that of PW4, Dennis Mwenda a clinician at Embu Level 5 Hospital. On the April 9, 2020 he examined the complainant and on examination he had no physical injury save for his anus which had a scar which was 2 cm and it had aborted blood inside. The wound was healing and it was about 7 days old. He had ease of stool as his anus was wide. He stated that he had been sodomized. In addition, he produced treatment notes from various hospitals for the complainant which showed that he had a mental disorder for which he was being treated.

19. In view of the evidence of PW1, PW2, PW3 and PW4, I find that the first element of penetration was proved by the prosecution. PW4 testified that he examined the complainant and found that the injury to his anus was seven (7) days old. The examination took place on the April 9, 2020 and the complainant had been sodomized on the April 3, 2020 which falls within the period of seven (7) days.

20. On identification of the assailant, there is no dispute that the complainant and the appellant are brothers. PW3 is their mother and she gave a detailed account of the events that happened on the night of April 3, 2020. She heard the voice of the appellant in the complainant’s house and the conversation that took place between them. She even attempted to rescue the complainant but the appellant threated her and she had to retreat to her house. The following morning, the complainant said that the appellant had sodomized him and that he used to do so. Though the appellant in his defence attributed his arrest and prosecution to a land dispute between himself and the rest of the family, the same was disputed by PW2 and PW3 and in any event there was overwhelming evidence that was adduced by the prosecution witnesses against him including his own mother who was the main witness in the case.

21. In view of the foregoing, I find that the appellant was positively identified as the assailant. I also find that he raped the complainant by sodomizing him without his consent and that is why he complained the night of April 3, 2020 when the appellant went to his house. If he had consented, he would not have told his mother PW3 what had transpired between him and the appellant.

22. It is my considered view, therefore, that all the ingredients of the offence of rape were proven by the prosecution.

23. On the assertion that the evidence by the prosecution was contradictory; with regard to contradictions the court in the case ofTwahangane Alfred v Uganda, criminal Appeal No 139 of 2001 92003) UGCA 6, stated;“With regard to contradictions in the prosecution’s case, the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case”.

24. I have gone through the whole evidence and in my view, though there are contradictions; the same are minor and they did not affect the main substance of the prosecution’s case.

25. The appellant also contended that the learned magistrate erred by relying on a defective charge sheet hence arriving at an erroneous finding. Section 137 of the Criminal Procedure Code sets out the rules for framing of charges and it requires that a charge or information should commence with the statement of the offence describing the offence briefly and in plain language and without necessarily stating all the essential elements of the offence. Where the offence is one created by an enactment, the statement of the offence is required to contain a reference to section of the enactment creating the offence.

26. The appellant did not substantiate on how the charge was defective. Section 382 of theCriminal Procedure Code focuses not on formal compliance with the rules of framing the charge, but on whether any error, omission or irregularity that has occurred has occasioned a failure of justice. In the case of Samuel Kilonzo Musau v Republic (supra) that provision insulates a finding or sentence of the trial court from challenge on account of error, omission or irregularity in the charge sheet, unless it has occasioned a miscarriage of justice. (See also George Njuguna Wamae v Republic, Criminal No. 417 of 2009). The appellant has not demonstrated any prejudice at all, that he has suffered if in his view the charge sheet is defective.

27. The appellant also contended that his defence was not considered. I have looked at the judgment that was delivered by the learned magistrate and I find that he considered the appellant’s defence and found that the issue of land dispute was not corroborated and that PW3 stated that she had no grudge against the appellant as he is her son.

28. The other ground of appeal was that the learned magistrate erred in relying on the evidence of a single eye witness. In this regard section 124 of the Evidence Act provides; 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. Under that section nothing precludes the court from convicting an accused person on the basis of a single eye witness, this being an offence under the Sexual Offences Act.

29. On sentence, the appellant was charged under section 3(1)(a)(b) and 3(3) of the Sexual Offences Act No 3 of 2006. The sentence provided for is for a term which shall not be less than ten (10) years but which may be enhanced to imprisonment for life. He was sentenced to twenty (20) years which is well within the law.

30. In the end, I find that the appeal has no merit and it is hereby dismissed.

31. Orders accordingly.

DELIVERED, DATED AND SIGNED AT EMBU THIS 4TH DAY OF OCTOBER, 2022. L. NJUGUNAJUDGE......................... for the Appellant......................... for the Respondent