[2020] KEHC 1034 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL APPEAL NO. 59 OF 2019

NGA’NGA DANIEL..............................APPELLANT

VERSUS

REPUBLIC.........................................RESPONDENT

(Being an appeal from the original conviction and sentence in the Chief Magistrate

Court at Kwale Sexual Offences No. 105 of 2017 by Hon. B. Koech (SRM) dated 9th May )

Coram: Hon. Justice J. Nyakundi

Mr. Muthomi for the Respondent present

Appellant in person

JUDGMENT

The Appellant was charged with rape contrary to section 3(1)(a)(b) of the Sexual Offence Act No. 3 of 2006. The particulars of the offence were that on 22nd day of October 2017 at Diani location in Kwale County within Coast region, he unlawfully and intentionally caused his penis to penetrate into the vagina of EGM without her consent.

At the end of the trial, the Appellant was convicted and sentenced to 22 years imprisonment. Aggrieved by the sentence and the conviction of the trial court, the Appellant lodged an appeal on the following amended grounds:

1) That the learned trial Magistrate erred in law and fact by failing to address the issue of my prolonged detention in police custody for five days against the provided 24 hours as provided in Article 49(1)(f) of the Constitution of Kenya 2010-

2) That the learned Hon. Trial Magistrate erred in law and fact by ignoring the spirit of the Kenyan constitution by holding me guilty as from the day of plea by denying me bond terms as provided by the Constitution under Article 49(1)(h) which was a clear signal that she was ready to convict me even if I was not guilty an act which violated the spirit of being presumed innocent until the contrary is proved in a court of law. Emphasis on Article 50(1)(2) of the Constitution that I was not awarded a fair trial.

3) That the learned Hon. Trial Magistrate erred in law and fact by holding that indeed I had raped the complainant in this matter without proper finding that: -

a) PW1 was not the one who blew the whistle to the police and she had not accused me before police turning this issue into a police case yet it was an act within the consent of PW1.

b) We had pre-arranged this commission and on the material day of commission had picked the complainant from her place of work and went with her to several places before ending our planned outing plan at a guest house where accidentally, PW1 bled excessively because of breakage of hymen but it was not a rape either anything against her will.

4) That the learned Hon. Trial Magistrate erred in law and fact in her decision of imprisoning me to 22 years on a charge of rape yet the conviction on a charge of rape is 10 years which means that she was partial and she had malice aforethought against me which was demonstrated by her act of denying me bond as provided under the constitution without giving any reason as to why I was not favourable for bond terms.

a) I told the court exactly what happened but it went ahead and rejected my sworn defence unreasonably for I did not make it as an afterthought for I had told the police what transpired on the day in question.

Background

PW1 EGM,the complainant told the court that on 22nd October 2017 she was on her way to work when the Appellant offered to give her a lift in a taxi registration number KCE. That once inside the car the Appellant told her not to go to church and he drove to a bar at a location she did not know. That at the bar the Appellant ordered juice for her and alcohol for himself. She stated that the Appellant forced her to drink alcohol though she had never drank it before. She felt dizzy.

PW1 stated that they got into the car and the Appellant took her to a lodging she had never seen before. That at the time she was feeling unwell and dizzy. She said that the Appellant led her to a room where he undressed her and raped her. Afterwards the Appellant left but informed her that he would return.

The complainant stated that she decided to go to take a shower but she fell down. She regained consciousness the next day and found herself at Tiwi Hospital. At the hospital, she was stitched at her private parts due to serious tears. She said that police officers made wanted to know the last person she was with and informed her that the alcohol was laced with drugs. She told them that she was last with the Appellant.

On a later date the complainant went to the police station and recorded her statement. She stated that she knew the Appellant as a neighbour and that he had given her lifts before while going to church.

In cross-examination by Mr. Koja for the Appellant, the complainant stated that he had known the Appellant for one year and that the Appellant had tried to seduce her but she refused. She stated that she had never drank alcohol before. She further said that while at the bar the Appellant added alcohol in her juice but did not put it in her mouth. Also she stated that after drinking the alcohol she was not in her normal senses and forced herself to walk to the Appellant’s car. She stated that the Appellant forcefully removed her clothes. Also she said she lost consciousness at some point and that she did not agree to have intercourse. She explained she did not scream, as she was drowsy like.

PW2 MWN was the manager of Pretty Guest House. She told the court that on 22nd October 2017 she went to church and came back at 11:00am. That at around 2:00pm PW4 informed her that door No. 4 was open and there was blood at the door and that it needed to be cleaned. That she sent people to clean the room when she heard screams and went to check. She stated that she found a lot of blood and PW1 was inside the bathroom. They tried to call PW1 but she did not respond and they rushed to report to the police.

PW2 came back with police officers who touched PW1 and found her to be alive. That the police allowed PW2 to dress the complainant as they called for CID officers who came and took pictures of the scene. They later rushed the complainant to hospital.

PW2 informed the court that while following up the matter at the police she met the Appellant at the police station. That when she inquired why the Appellant had left the complainant, he informed him that he had left for work.

PW3 No. 233638 Chief Inspector Pius Chemwoloat the time of the offence was in charge of the command centre at Diani Police Station. He told the court that on 29th October 2017 the investigating officer, PW7, requested him to take the Appellant’s confession. That he explained to the Appellant his rights including his choice to nominate an advocate or any person to be present during the recording of the confession. He informed the court that the Appellant chose his aunt, CM to be present. PW3 put off the recording of the confession to 31st October 2017 to allow the Appellant’s representative to be present.

That on 31st October 2017, PW3 recorded the Appellant’s confession in Swahili in the presence of his aunt. That after recording the confession PW3, the Appellant and the Appellant’s aunt all signed the confession. PW3 read the confession and produced it as P. exhibit 4.

PW4 VPstated that she worked at Pretty Guest House. That on 22nd October 2017 the Appellant came to the guest house driving a motor vehicle registration number KCE136T and asked for a room which her hired out for KSh. 500. That he Appellant returned to the car and took a girl and went to room number 4. That after 30minutes at around 1:30pm, the Appellant requested her to open the gate and left.

PW4 told the court that later; her brother in law informed her and PW2 that there was blood in room number 4. That they went to the room and found blood on the bedsheets and floor and the complainant was lying naked in the bathroom. PW2 informed the police who came and took picture.

In cross-examination, PW4 stated that she did not see the Appellant force the complainant into the room otherwise she would have informed the owner of the hotel.

PW5 No.60080 corporal Charles Munyao gave evidence that the complainant was found lying naked in the bathroom at Pretty Guest House. That the room had a lot of blood. He took the complainant to Tiwi Health Centre together with PW2. Pw5 spoke to the doctor who informed him that the complainant was intoxicated.

PW6 Kennedy Kiplimo Sangwas the clinical officer at Tiwi Rural Health Centre and examined the complainant. He stated that the complainant hymen was freshly torn and there were tears on her posterior and anterior vaginal walls which were oozing blood which required stitching. He formed the opinion that there was forceful penetration. He prepared the P3 (P. Exhibit 2(a)) and the post care rape form (P. Exhibit 2(b)).

In cross-examination by Mr. Koja for the Appellant, PW6 stated that it was his opinion that there was forceful penetration due to the tears. He further stated that normal penetration on virgins concern tears.

PW7 No.83612 corporal Emma Mututiattached to Diani Police Station was the investigating officer. She stated that PW2 made a report concerning a body of a lady in her guest house. That Inspector Kanini together with PC Sigunda and PW5 proceeded to the scene of crime. That at *:00pm she was instructed by Inspector Karani to take up investigations. In her investigations she established that The Appellant was her neighbour and a taxi driver and that on the day of the incident he had given her drinks which led her to lose consciousness. She further forwarded vaginal swabs, the bedsheets, pillowcase, towel and panty to the government chemist for DNA testing.

PW8 George Lawrence Ogundawas the government chemist, Mombasa. He produced DNA report (P. exhibit6(b)) which indicated that the DNA of the Appellant and the complainant was present at the scene of crime.

At the close of the prosecution case, the Appellant was placed on his defence and gave a sworn statement. He stated that the complainant was his girlfriend. That on 22nd October 2017 the complainant said that she wanted to go to church but they had arranged to enjoy themselves. He told the court that they first went to the beach but they could not swim due to the high tide and ended up going to Breeze Bay where there was a swimming pool. That they found the caretaker cleaning the swimming pool so they opted to eat and drink. The Appellant stated that he bought guarana an alcoholic drink for the complainant after she informed him that she had tested it before and it was sweet.

That they wanted a room to rest but it was expensive and they instead went to Gross Vena, a guest house. That he paid for the room and they went to the room. He stated that at the time the complainant was not drank. That once in the room they took a shower then had sex. He stated that it was the Appellant’s first time to have sex and that she bled. The Appellant told the court that his employer called him asking for the car urgently. He informed the complainant that he would get her pads and come back.

He stated that he was with his boss up to 5pm. That as he was making his way back he was called from Diani Police Station but he did not go there immediately. Instead, he tried contacting the Appellant to no avail until 8:00pm when, she informed him that she was in hospital

In cross-examination, the Appellant stated that the kiosk was near PW1’s house and he used to seem him pass near the kiosk and that he had never quarrelled with him

Submissions

Appellant’s written submissions

On appeal, the Appellant relied on his written submissions filed on the 18th February 2020. The Appellant submitted that his rights under Article 49 of the Constitution were infringed as he was detained for more than 24 hours and that he was denied bail. He submitted that the failure by the court to grant him bail was an indication that he had been found guilty at the start of the trial infringing his rights to a fair trial.

He also submitted that he had consensual sex with the complainant as he had spent the better part of the day with her and she had willingly gone to the lodging with him.

On sentence, he submitted that the sentence was severe and it violated the provision of Article 50(2)(p) of the Constitution. He argued that the trial magistrate acted unfairly by enhancing the sentence from 10 years to 22 years without giving reason for the same. He urged the court to exercise its discretion as held in Onstitutional Petition 15 & 16 of 2015 Francis Karioko Muruatetu & Ano vs Republic

Respondent’s submissions

In opposition to the appeal, the Respondent relied on its written submissions dated 20th Mat 2020 and filed on the 21st May 2020. The Respondent submitted that the prosecution proved that there was no consent as the complainant was drugged. It was further submitted that the fact that the Appellant felt that the complainant owed him sex proved the Appellant’s men’s rea. Reliance was placed on

Criminal Appeal No. 14 of 2014; Charles Ndirangu Kibue vs Republic [2016] eKLR and Republic vs Oiyer [1985] KLR 353.

On the Appellant’s claim of Constitutional violation, the Respondent submitted that the same were unsubstantiated as the record reflected that the Appellant through his advocate had made several applications for release on bond but the same were denied for legal and compelling reasons.

Lastly, on sentence, the Respondent stated that the trial court took notice of aggravating circumstances that showed that the complainant was traumatized by the ordeal and need psychological support. The court was urged to confirm the conviction and sentence and dismiss the appeal

Analysis and determination

This being a first appeal, this court has a duty to revisit the evidence that was before the trial court, re-evaluate and analyse it and come to its own conclusions. Further, the court has to bear in mind that unlike the trial court, it did not have the benefit of seeing the demeanour of the witnesses and the Appellant during the trial and can therefore only rely on the evidence that is on record. See Okeno v R (1972) EA 32, Eric Onyango Odeng’ v R [2014] eKLR.

I have considered the grounds of appeal, the respective submissions, and the record and the issue for determination is whether the Appellant’s rights were violated, whether the prosecution proved its case and whether the sentence was excessive.

The Appellant contends that he was detained for 5 days before being presented to court contrary to Article 49(1)(f) of the Constitution which provides that:-

49. (1) An arrested person has the right—

(f) to be brought before a court as soon as reasonably possible, but not later than: -

(i) twenty-four hours after being arrested; or

(ii) if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day;

The charge sheet indicates that he was arrested on 25/10/2017 and was arraigned in court on 30/10/2017. There is no doubt that the Appellant was detained for 5days in clear contravention of the Constitution. There was no reasons given by the prosecution for this illegal detention. However, this fact does not invalidate the judgement of the court. The Court of Appeal in Benjamin Mbithi Kaveva v Republic [2014] eKLRwhere it held that: -

[18] We concur with the learned Judges of the first appellate court that the delay in producing the appellant in court was explainable and that no prejudice was suffered by the appellant due to the delay. Moreover, even assuming that the delay was unexplainable, the conviction cannot be upset solely on account of violation of the appellant’s constitutional right as such violation would only give rise to an independent cause of action for damages and not absolve the appellant of any criminal liability in regard to the case then under investigations.

Similarly, the in B. W. S v Republic [2013] eKLRNgenye-Macharia J held that: -

He has brought up the issue too late in the day, and unless combined by other factors that this appeal must succeed, the mere fact that he was kept in custody for more than the required period would not vitiate any strong evidence leveled against him by the prosecution. That is to say that this court cannot hold the charges and subsequent proceedings in the lower court a nullity merely on ground that the Appellant remained in police custody for a period more that the law provided.

But this is not to say that he has no recourse. If indeed he thinks his constitutional rights were violated for the reasons above, he is at liberty to file civil proceedings against the individual who violated his rights for recovery of damages (if any), arising from such unlawful incarceration.

Guided by the above authorities, the Appellant being aggrieved by the unlawfully detention, he has a right to recourse from the courts through a constitutional petition which is clothes with jurisdiction to follow up on this issue.

The next issue is whether the prosecution proved its case beyond reasonable doubt. The 3 elements of the offence of rape that must be proved are: - penetration and that the penetration was unlawful and without consent. There must be prove linking the accused to the offence whose identification must be beyond reasonable doubt.

In the case before me, there is no contention that the Appellant had sex with the complainant which the Appellant has submitted. The only dispute is whether the complainant gave her consent before the sexual encounter.

Section 42 of the SOA defines consent as: -

For the purposes of this Act, a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice.

Section 43 of the SOA states that: -

(1)An act is intentional and unlawful if it is committed—

(a) in any coercive circumstance;

(b) under false pretences or by fraudulent means; or

(c) in respect of a person who is incapable of appreciating the nature of an act which causes the offence.

(2) ...

(3)...

(4) The circumstances in which a person is incapable in law of appreciating the nature of an act referred to in subsection (1) include circumstances where such a person is, at the time of the commission of such act—

(a) asleep;

(b) unconscious;

(c) in an altered stated of consciousness;

(d) under the influence of medicine, drug, alcohol or other substance to the extent that the person’s consciousness or judgment is adversely affected;

(e) mentally impaired; or

(f) a child. (Emphasis mine)

The Court of Appeal in Republic v Francis Otieno Oyier [1985] eKLR set out the mens rea for rape outlined what the prosecution was required to prove when it pronounced itself thus: -

“The learned magistrate had the correct appreciation of the men’s rea in rape. It is primarily an intention and not state of mind. Thus the mental element is to have intercourse without consent, or not caring whether the woman consented or not: DPP v Morgan (1975) 61 Cr Appl. R 136 HL The prosecution must prove either that the complainant physically resisted, or, if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist; Archbold Criminal Pleading Evidence and Practice 40th Edn pp 1411 – 1412 paragraph 2881 and R v Harwood K (1966) 50 CR App R 56. ” (Emphasis mine).

In the present case, the complainant stated that the Appellant had bought her alcohol, which he forced her to drink. That she become drowsy and unwell and had to force herself to walk to the Appellant’s car. That at the guesthouse, the Appellant forcefully removed her clothes and raped her. She stated that she could not scream as she was drowsy.

The Appellant in his defence stated that the complainant was the one who ordered guarana, an alcoholic drink, claiming that he had drank it before and found it was sweet. That when they finished they went to the guesthouse where they had consensual sex. He stated that they had agreed to enjoy themselves on the day of the incident.

I have reviewed the evidence on record. There is no doubt that the Appellant bought beer for the complainant. The complainant told the court this was her first time drinking alcohol. The Appellant’s assertion that she claimed to have drank before are unsubstantiated. This was his first time seeing her drink alcohol despite claiming to have been in a relationship with her for an year. The fact that this was the first time the complainant drank alcohol it is quite probable that the complainant became intoxicated adversely affecting her judgment.

I find that the prosecution had discharged it burden of proving the complainant was intoxicated at the time of the offence. It was incumbent on the Appellant to prove that the complainant understood the situation and consented to have sex. There is no evidence that the complainant had agreed beforehand that she was going to have sexual intercourse with the Appellant. The fact that a lady agrees to have a fun time with a man does not necessarily mean that she has agreed to any and all sundry activity that the man has planned out without consent. It is quite probable that she may enjoy your company and spending time with you but that does not mean you can trespass on her person without her permission. In the premise I find that there was no consent.

On sentence, the Appellant contends that the same was harsh and excessive. In sentencing the Appellant, the trail magistrate stated that: -

I have considered the mitigation given by the accused. I have also treated him as a first offender. I have taken into consideration the circumstances of the offence charged and the time and the time the accused person has been in custody. The accused took away the complainant’s pride virginity in the mos cruel way. The accused took advantage of her naivety. The minimum sentence for the offence of rape is ten years. I do find aggravating facts in this case, I do sentence the accused person to 22 years in prison.

It is trite that sentencing is at the discretion of the trial court and an appellate court can interfere with the sentence where it is demonstrated that the court acted on wrong principle; ignored material factors; took into account irrelevant considerations; or on the whole that the sentence is manifestly excessive. See Benard Kimani Gacheru vs Republic [2002] eKLR.

The Judiciary’s Sentencing Policy Guidelines 2016 sets out a list of aggravating and mitigating factors in paragraphs 23. 7 and 23. 8 respectively as follows:

Aggravating circumstances

1. Use of a weapon to frighten or injure a victim; the more dangerous the weapon, the higher the culpability.

2. Multiple victims.

3. Grave impact on national security.

4. Serious physical or psychological effect on the victim.

5. Continued assault or repeated assaults on the same victim.

6. Commission of the offence in a gang or group.

7. Targeting of vulnerable groups such as children, elderly persons and persons with disability.

8. Previous conviction(s), particularly where a pattern of repeat offending is disclosed.

9. Intricate planning of an offence.

10. An intention to commit a more serious offence than was actually committed.

11. High level of profit from the offence.

12. An attempt to conceal or dispose of evidence.

13. Flagrant use of violence or damage to person or property in the carrying out of an offence.

14. Abuse of a position of trust and authority.

15. Use of grossly inhuman and degrading means in the commission of an offence.

16. Targeting those working in the public sector or providing a service to the public.

17. Commission of offences motivated by ethnic, racial and gender bias.

Mitigating circumstances

1. A great degree of provocation.

2. Commitment to repairing the harm caused by the offender’s conduct as evidenced by actions such as compensation, reconciliation and restitution prior to conviction.

3. Negligible harm or damage caused.

4. Mental illness or impaired functioning of the mind.

5. Age, where it affects the responsibility of the individual offender.

6. Playing of a minor role in the offence.

7. Being a first offender.

8. Remorsefulness.

9. Commission of a crime in response to gender-based violence.

10. Pleading guilty at the earliest opportunity and cooperation with the prosecution and the police.

Paragraph 23. 9.4 of the guidelines outlines the determination of a sentence where there are mitigating and aggravating circumstances and states: -

In view of aggravating and mitigating circumstances, the determination of the term of the custodial sentence shall be as follows:

4. Presence of both aggravating and mitigating circumstances:Where both exist, the court should weigh the aggravating and mitigating circumstances and where mitigating circumstances outweigh the aggravating ones, then the court should proceed as if there is a single mitigating circumstance. Where aggravating circumstances outweigh the mitigating circumstances, then the court should proceed as if there is a single aggravating circumstance.

In the present case, I have considered the mitigating circumstances that he was a first offender and that he was remorseful and the aggravating circumstances that the offence had a psychological offence on the complainant. I find that the mitigating circumstances outweigh the aggravating factors and therefore the trial magistrate misdirected himself in enhancing the sentence to 22 years.

In the premises, I uphold the judgment of the trial court and confirm the Appellant’s conviction. However, on sentence I take into consideration that the Appellant was in custody for one and a half years the one year the Appellant spent in custody as stipulated in section 333(2) of the CPC. I hereby set aside the sentence for 20 years and substitute it with a sentence of ten years from the date of Judgment.

Orders accordingly.

Judgment delivered, dated and signed at Malindi this 9th day of December, 2020.

..........................

R. NYAKUNDI

JUDGE

In the presence of:

Mr. Mwangereka for the Respondent present

Appellant in person