[2017] KEHC 3287 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL 91 OF 2015

NICHOLUS KIVITI NJERU……………….....…APPELLANT

VERSUS

REPUBLIC…………………..........................RESPONDENT

JUDGMENT

The Appellant herein was on the 10th November, 2015 convicted and sentenced to five (5) years imprisonment for the offence of attempted Rape Contrary to section 4 of the Sexual Offences Act no.3 of 2006.

The particulars of the offence were that, on the 30th day of July, 2014 in Mbeere South District within Embu County, intentionally and unlawfully attempted to have sexual intercourse with M N K.

He appealed against both the conviction and the sentence and has listed 6 grounds of Appeal.

The summary of the evidence as adduced by the prosecution witnesses was as follows;

PW1 told the court that on the 30/7/2014 at midnight, he was asleep when he heard his mother (the complainant) shouting and on going to check he found her house open. He had a torch and on putting it on he saw a person who he identified as the Appellant, lying on top of his mother. The Appellant was naked and the complainant was in bed. On seeing him, the Appellant removed his hand from the complainant’s mouth and on trying to rise up, the complainant held the Appellant’s penis. PW1 shouted for help and two neighbours namely Joel Kithaka and John Gachira came and together they tied the Appellant with a rope and took him to Makima Chief’s Camp. He knew the Appellant before as he is his neighbour.

PW2, was asleep when she heard a person opening her door by force. He asked who it was and the person identified himself as Ngare. She went back to sleep but immediately thereafter the person started touching her legs, then her shoulders. He hit her on the abdomen. The person lay on her, touched her with his penis and she screamet, for help from her son (PW1). The person covered her mouth and nose. PW1 went inside her house and asked her what was happening and he assisted arresting the Appellant who was taken to the Makima Chief Camp. He identified the person who was in her house as the Appellant. She later went to hospital and was treated.

PW3 testified that on 30/7/2014 at 12. 30 am, he was in the house sleeping when he heard screams from PW1 and rushed out to towards his gate. He found PW1 standing outside PW2’s house and he informed him that inside the house there was a person who tried to rape PW2. PW1 told the person to come out and he did. They were able to identify him as the Appellant using the light from the torch. They arrested him, tied his hands and took him to Makima AP Camp. He stated that he knew the Appellant because he taught him when he was a student.

PW4 was the Clinical Officer who saw the complainant after she went to her with neck pains and complained of attempted rape. She stated that PW2 had dark nail marks on the head and neck. The approximate age of injury was 12 hours and the probable cause of the injury was a blunt object. On genitalia there was a whitish discharge in the vaginal opening.

PW5 investigated the case. She took PW2’s statement and sent her for medical attention. He produced the P3 form and the treatment notes for the (PW2)

The Appeal proceed by way of written submissions.

This court has considered the evidence on record, and the submissions by both the Appellant and the Respondent.

The grounds of Appeal can be summarized as follows; that the learned trial Magistrate erred in convicting the Appellant before placing him on his defence contrary to Section 211 of the CPC, that the learned Magistrate failed to observe that there was no ruling to prove that he had a case to answer, that the trial Magistrate erred by convicting him on the evidence of blood relatives who framed him up, that the Appellant’s constitutional rights were violated as he was kept in police custody for more than 24 hours and that he was not accorded an advocate by the state at its expense hence violating Article 50(2) (g) (h) of the constitution.

In his submissions, the Appellant abandoned the first ground of Appeal.

On the 2nd ground of Appeal, he contended that Section 211 of CPC was not complied with. The court has perused the proceedings of the lower court and its noted that in a short ruling, the learned Magistrate stated that the Appellant had a case to answer and must comply with Section 211 CPC. The record also shows that the trial Magistrate recorded the Appellant as having stated that he was going to give unsworn evidence and that he was not going to call any witness. From the above extract, it is clear that the learned Magistrate complied with Section 211 of the CPC and therefore grounds 2 & 3 must fail.

On ground number 4, that the learned Magistrate relied on the evidence of blood related witnesses who framed up the evidence to fabricate the case, I note that in addition to the evidence of PW1 and PW2, there was also the evidence of PW4 who was a neghbour to both the Appellant and the complainant. In his evidence, he stated that apart from himself John Kasuva also went to PW2’s house to respond to the distress call.

It was his further evidence that he knew the Appellant before the material date as he had taught him when he was a student. They used a spotlight to identify the Appellant.

When PW1 went to PW2’s house, the door was not closed and on entering the bedroom he found the Appellant naked on top of PW2 which means that he was caught red handed attempting to rape PW2. PW1 closed the door to PW2’s house while the Appellant was still inside and together with a neighbour namely John Kasuva tied the hands of the Appellant, arrested him and took him to the Makima AP’s camp and therefore, there was no mistaken identity as the Appellant was arrested at the scene. The evidence of PW1 and PW2 though blood relatives was very credible and it was corroborated by that of PW3.

On the contention that the Appellant was held in police custody for more than 24 hours before he was taken to court, the record shows that he was arrested on the 30/7/2014 and was taken to court the following day on the 31/7/2014 and therefore his rights were not violated as alleged.

With regard to the 6th ground of Appeal to the effect that he was not accorded legal representation by the state at its own expense, the constitution is very clear that parliament need to pass legislation and provide for the same and since none has been provided, the Appellant’s rights cannot be said to have been violated in the circumstances.

In his submissions, the Appellant submitted that there was a grudge between himself and PW1. In my view such a defence cannot hold water in this case because PW1 was not the complaint and in any event, the Appellant was arrested at the scene, and was positively identified by all the prosecution witnesses as the person who attempted to rape PW2.

On the Appellant’s contention that his defence was not considered by the learned Magistrate, I have perused the Judgement of the Lower Court and it is clear that the learned Magistrate considered the Appellant's defence and dismissed the same was it was not credible. As the learned Magistrate noted, did not explain what he was doing in PW2’s house at the material time and therefore the same was not sustainable and was just an afterthought.

With regard to the Appellant’s contention that the prosecution did not call vital witnesses, Section 143 of the Evidence Act is clear that the prosecution has a discretion to call the witnesses they wish to call to prove their case. A cursory Perusal of the evidence adduced by the prosecution witnesses reveals without any doubt that their evidence was sufficient to sustain a conviction.

Having evaluated the evidence on record as hereinabove, I do not find any reason to fault the Judgment of the learned Magistrate. I find that the Appeal herein is devoid of merits and it is hereby dismissed.

It is so ordered.

Dated, Signed and Delivered at Embu this 2nd Day of October, 2017.

…………………………….

L. NJUGUNA

JUDGE

In the Presence of

…………………………. for the Appellant

…………………………. for the Respondent