[2022] KEHC 10472 (KLR)

Mutai & another v Republic (Criminal Appeal E060 of 2021) [2022] KEHC 10472 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10472 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal E060 of 2021

RN Nyakundi, J

May 19, 2022

Between

Mike Mutai

1st Appellant

John Mutai

2nd Appellant

and

Republic

Respondent

(Being an appeal from judgment of the Honourable Charles Obulutsa, Chief Magistrate dated 12th April 2021, delivered on 16th August 2021 in Criminal SO No. 75 of 2018)

Judgment

1. The Appellants ware charged with the offence of gang rape contrary to section 10 of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 19th day of March 2018 in Eldoret District within Uasin Gishu County, jointly one after another intentionally and unlawfully caused their penis to penetrate the vagina of SM without her consent.

2. They were also charged with an alternative charge of committing an indecent act with an adult contrary to section 11(a) of the Sexual Offences Act no. 3 of 2006. The particulars thereof are; that on 19th March 2018 in Eldoret East District within Uasin Gishu county jointly one after the other caused genital organs to come in contact with the genital organs (vagina) of SM.

3. The Appellants denied the charges and a trial was held where five witnesses testified in favour of the prosecution. At the close of the prosecution’s case the Appellants were placed on their defense and they opted to give an unsworn statement. They were then found guilty and convicted for the charge of gang rape contrary to Section 10 of the Sexual Offences Act. They were then sentenced to 15 years imprisonment.

4. Being aggrieved by the said convictions and sentences, the Appellants preferred an appeal and raised the following eight grounds: -1. That the learned magistrate erred in law and in fact in making a finding that the accused persons were positively identified.2. That the learned magistrate erred in law and in fact in making and finding that the accused persons had carnal knowledge of the complainant in turns without her consent.3. That the learned trial magistrate erred in law and in fact in not making a finding that the evidence of the prosecutrix(sic) in a rape case must be corroborated.4. That the learned trial magistrate erred in law in law in not making a finding that evidence that itself requires corroboration, cannot corroborate and that the evidence of the minors herein could not corroborate the evidence of their mother.5. That the learned trial magistrate erred in not making a finding that the standard of proof was not achieved.6. That the learned trial magistrate erred in not making a finding that the evidence of identification was unsatisfactory.7. That the sentence was manifestly excessive in the circumstances of this case.8. That the complainant has subsequently admitted that the case was not genuine and that the same was fabricated.

5. Directions were given and the appeal was disposed of by way of written submissions. The Appellants filed their submissions on 30th November 2021 while the prosecution filed its submissions dated 8th February 2022.

Appellants’ submission 6. The appellants submitted that they were not positively identified and the evidence of some of the witnesses were highly contradictory. According to them, PW1 told the court that on 19th March 2018, the two accused persons came to her house at midnight. PW2, FC a child of tender years , a daughter to the complainant stated that she was able to identify the appellants using a phone. PW3, MJ a minor of eight years stated in cross examination that they had a torch at home which they used in identifying the appellants. According to the appellants, this evidence was contradictory and can never be relied upon to secure the conviction herein. It was submitted that the matter was alleged to have occurred at midnight and there was no moonlight. And further, that there was no evidence that the accused persons spoke and were identified by their voices.

7. The appellants further submitted that the evidence of the complainant was not corroborated. In addition, they submitted that that the evidence of the children , being persons of tender years aged 12 and 8 respectively, required to be corroborated and that the evidence of the mother could not corroborate that of her children.

8. The Appellants submitted that there was a discrepancy in the medical records and the evidence of the doctor,PW4. According to the appellants, the P3 shows in section B(4) that no treatment was given prior to examination yet it is the same doctor who treated her and filled in the p3; and that from his examination, the complainant had tenderness in the upper shoulder joint, yet there was no claim of any attacks on this area. Also, it was submitted that at Section A(1) of the P3, it was indicated that the complainant’s panties were blood stained, yet what was presented in court was a petty coat. They concluded their argument that they were framed over this case because of the land dispute.

9. The Appellants cited the following several authorities in support of their appeal which they asked the court to consider.a)Eria Sebwatov.Republic (1960)E. A 174b)Solu Wa Tutuv. R (1934) EALR 183c)Kibangeny Arap Kolil v. R EA

10. In the end, they urged the court to allow the appeal and they be set free.

Respondent’s submission 11. M/s Limo, the prosecution counsel, conceded to the appeal on the account of doubt on identification of the appellants. It was submitted that the incident happened at night and the complainant in her evidence forgot to mention how she was able to recognize her assailants.

12. Further, it was submitted that based on the contradictions in the prosecution’s evidence and especially on the identification of the appellants by PW2 and PW3 as regards the intensity of the source of light as well as who had the torch pointed at the appellants, since the same was not elaborated before the trial court, the prosecution counsel opined for the matter to be reverted to the trial court for that gray area to be put in black and white.

13. Counsel for the Respondent cited the case of Kyalo Mutisya v R(2008) eKLR in support of the submission for a retrial

Analysis 14. This being a first appeal, the evidence adduced before the trial court has to be evaluated so as to enable the court arrive at its own decision. PW1 was the complainant. She testified that on 19/3/2018 , the two accused persons came to her house at midnight, the first accused went to where PW1 was sleeping, tore her clothes. The second accused slapped her then both accused persons raped her in front of the children. It was her testimony that she bled after 1st accused person raped her and that when the 2nd accused person put his hand on her, she passed out. On cross examination, she stated that she saw the accused persons in the house and reported the incident on 21/3/2018 where she was issued with a P3 form which was filled at a later date .

15. PW2 FC aged 12 years gave unsworn evidence and testified that on the fateful day, the accused persons went to their home, slept on their bed with their mother and beat her . PW2 stated that there was light from a phone which they were able to see the accused persons with.

16. PW3 MJ aged 8 years also gave unsworn evidence and stated that on the night of the incident, the accused persons went to their home at midnight, pulled their mother on the bed and tore her clothes then slept on her. She stated that the complainant screamed and the 2nd accused slapped ger and pulled her to the ground where she passed out. On cross examination, PW3 maintained that they had a blue plastic torch which they used and that it was PW2 who put on her torch.

17. PW4 was Doctor Okitamu Muli, based at Burnt Forest Sub-County hospital. He testified that he attended to the complainant who had pain on the private parts with old and fresh blood. He stated there was minor lacerations of the vulva and that she was put on medication and PEP antibiotics.

18. PW5 Police constable Mercline Ayesa stationed at Tarakwa police station stated that he was assigned the case to investigate where the complainant was sent to hospital for treatment and the p3 form was filled. On cross examination, he stated that the report was made on 21st March 2018 and a p3 from was issued 3 days later.

19. In their unsworn defence the appellants denied committing the offence. They called two witnesses each in support of the defence and maintained that on the material night, they were at their respective homes.

Determination 20. Gang rape is provided for under section 10 of the Sexual Offences Act which states;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 than fifteen years but which may be enhanced to imprisonment for life.

21. The essential element of gang rape is rape committed in association with two or more persons. The ingredients of rape which the prosecution must prove are set out in Section 3(1) of the Sexual Offences Act, 2006;A person commits the offence termed rape if –(a)He or she intentionally or unlawfully commits an act which causes penetration with his or genital organs.(b)The other person does not consent to the penetration; or(c)The consent is obtained by force or by means of threats or intimidation of any kind.

22. In this case, having carefully read and understood the record and the submissions before this court, it would appear that the bone of contention is with regards to identification of the accused persons as the assailants on the material day.

23. The prosecution in its submissions in this appeal already conceded that the identification of the accused persons was not proper and opined for an order of retrial by the trial court.

24. The issue of identification or recognition is central to the prosecution’s case against the appellants, basically because the alleged rape is alleged to have taken place at midnight on the material night.The Evidence Act Dictionary defines “identification evidence” in the following terms: "identification evidence" means evidence that is:(a)an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where:(i)the offence for which the defendant is being prosecuted was committed, or(ii)an act connected to that offence was done, at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time, or(b)a report (whether oral or in writing) of such an assertion.(2)Visual identification evidence adduced by the prosecutor is not admissible unless:(a)an identification parade that included the defendant was held before the identification was made, or(b)it would not have been reasonable to have held such a parade, or(c)the defendant refused to take part in such a parade, and the identification was made without the person who made it having been intentionally influenced to identify the defendant.(3)Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account:(a)the kind of offence, and the gravity of the offence, concerned, and(b)the importance of the evidence, and(c)the practicality of holding an identification parade having regard, among other things:(i)if the defendant failed to cooperate in the conduct of the parade-to the manner and extent of, and the reason (if any) for, the failure, and(ii)in any case-to whether the identification was made at or about the time of the commission of the offence, and(d)the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the defendant and the person who made the identification.(4)It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the defendant for such a parade to have been held.(5)If:(a)the defendant refused to take part in an identification parade unless a lawyer acting for the defendant, or another person chosen by the defendant, was present while it was being held, and(b)there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such a lawyer or person to be present,it is presumed that it would not have been reasonable to have held an identification parade at that time.(6)In determining whether it was reasonable to have held an identification parade, the court is not to take into account the availability of pictures or photographs that could be used in making identifications.

25. Evidence of identification in this case was not given by the victim (PW1) but by her children PW2 and PW3. According to PW2, she was able to identify the accused persons through a mobile phone. PW3 on the other hand stated that she put on a blue plastic torch hence was able to identify the accused persons as the assailants.

26. Courts have held that where identification is based on visual identification it is paramount that the court warns itself on the dangers of relying on visual identification. In the case of. In R-V-Turnbull, (1976) 3 All ER 551 the court stated that:-“... The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way....? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? how long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?....”

27. Coming back home, In the case of Cleophas Otieno Wamunga vs Republic Court of Appeal Criminal Appeal No. 20 of 1989 KLR 424 , the Court of Appeal held that:“Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken, the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification”.

28. Being persuaded by the holding in R v Turnbull (supra) as to the set guidelines, I am of the view that the accused persons were not positively identified.

29. In Philip Nzaka Watu v Republic [2006] eKLR, it was held that that to find conviction in a Criminal case, the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt. On proof beyond reasonable doubt, the court stated in Stephen Nguli Mulili v Republic[2014] eKLR:“[I]t is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP v Woolmington, (1935) UKHL 1 where the court eloquently stated that the “golden thread” in the “web of English common law” is that it is the duty of the prosecution to prove its case. The Kenyan Courts have upheld this position in numerous cases. See Festus Mukati Murwa v R, [2013] eKLR.”

30. From the evidence of PW2 and PW3, and taking into account the discrepancies in the evidence of PW2 and PW3 as regards the lighting so as to identify the assailants, I am satisfied that there was doubt that the appellants herein raped the complainant, which doubt should be to the benefit of the appellants.

31. In the end, I allow the appeal, quash the conviction, set aside the sentence and direct that the appellants shall be set free unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 19thDAY OF MAY, 2022. R. NYAKUNDIJUDGEIn the presence of:Mr Mark Mugun for the stateMr Sambu for Chebii for the appellants