[2023] KEHC 26232 (KLR)

Njiru v Republic (Criminal Appeal E061 of 2022) [2023] KEHC 26232 (KLR) (29 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26232 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E061 of 2022

LM Njuguna, J

November 29, 2023

Between

Morris Njeru Njiru

Appellant

and

Republic

Respondent

(Appeal arising from the decision of Hon. Ndeng’eri J, SRM in Chief Magistrate’s Court at Embu Sexual Offence No. 37 of 2016 delivered on 25th November 2020)

Judgment

1. The appellant herein was charged with rape of a person with mental disability contrary to Section 3 of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on 23rd October 2016 in Embu North within Embu County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of PJK a woman aged 88 years.

2. The alternative charge was committing an indecent act with an adult contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the second count are that on 23rd October 2016 in Embu North within Embu County, the appellant intentionally and unlawfully caused his penis to touch the vagina of PJK a woman aged 88 years.

3. The case proceeded to full hearing and in a judgment delivered on 25th November 2020 the appellant was convicted and sentenced to serve 12 years imprisonment.

4. The appellant, being dissatisfied with the decision of the trial court, filed an undated petition of appeal, seeking orders that the appeal be allowed, conviction quashed, sentence be set aside and the appellant be set free. The appeal is premised on the grounds that:a.The learned trial magistrate erred in both law and fact by failing to note that the prosecution’s case was fabricated, insufficient and contradictory to sustain a conviction;b.The learned trial magistrate erred in both law and fact by failing to give reasons for believing a single eye witness contrary to Section 124 of the Evidence Act;c.The learned trial magistrate erred in both law and fact by failing to consider the time spent in remand when sentencing;d.The learned trial magistrate erred in fact by rejecting the appellant’s defense without any reason.

5. At the trial, PW1, the victim stated that on the day of the incident, someone whose name she could not recall pulled her out of the river and removed her clothes then raped her and ran away. That it was dark and she called for help and a young boy came to her rescue. That after the incident she went to the hospital. On cross-examination, she stated that the appellant looked familiar but she did not know his name. That she was not coerced to report the incident. That she was raped and whoever did it took off after the incident. That she was taken to Kibugu Hospital which is near her home, where she was treated. That her husband was not there when the incident occurred.

6. After voire dire, PW2 a grandson of the victim stated that on the day of the incident, he had returned home at around 6:40p.m when his father asked him to go for milk. That he heard someone screaming and saying “unaniua wacha kuniua”. That he went to his grandmother’s home but did not find her and his grandfather told her that the victim had been called to go to Mama Brian’s house. That he told his grandfather that he had heard his grandmother screaming from the coffee farm. He said that his grandfather told him to take a torch and a panga and go ahead as this grandfather was slow on his feet. That his father and Baba Dennis also came along to the coffee farm and with the aid of the torch, they found the victim and the appellant’s ID was also found at the scene. He stated that he did not see anyone else that night but identified the appellant as his relative. On cross-examination he stated that he lives with his grandmother and he knows her voice very well. That Baba D is also called NK and he is the one who shone the torch and they saw the victim on top of a bench. That his grandmother said that she did not want to be asked any questions afterwards.

7. PW3, Francis NK stated that on the day of the incident at around 7:30p.m, his neighbor JN called him and told him that his mother was in distress but they could not find her. That they split up so that they could cover more ground and he went with PW2. That while they were in the coffee plantation, he heard dry leaves moving and when he shone his torch, he saw the victim on a coffee bench. That she told him that she had been dragged there by someone she did not know. That Justus found the appellant’s identification card and he also identified him in court as someone he had known for about ten years. On cross-examination, he stated that the victim did not tell him that she had been raped but rather that she had been dragged into the coffee plantation. That the victim is very forgetful and is usually confused.

8. PW4, JN stated that on that day at around 9:30p.m. he was at home when he was informed that the victim had been taken to hospital after being assaulted by the appellant. That he called the OCS and he found the appellant by the riverside about to cross to Kirinyaga County. That the OCS took him to Kibugu Police Post. He identified the appellant and said that he had known him since he was a child. On cross-examination he stated that offenders were fond of crossing the river into Kirinyaga County and would return once things had calmed down. That the appellant was found at Kismayo bar near the county border but on the Embu side at around 7:30a.m. the next morning after the incident.

9. PW5, JNK, stated that on the material day, the appellant was at his compound and the appellant, who was drunk, left and went to the victim’s compound. That while he was bathing, he heard PW2 telling him that PW1 was screaming for help. That with the help of PW2, his father and PW3, the victim was found in the coffee plantation and she said that her hip was in pain and she could not walk. That the appellant’s ID was found at the scene. On cross-examination he said that the appellant and the victim are not related. That the incident occurred about two minutes after the appellant left his compound. That he saw the appellant running away when they recovered the ID at a place where the grass seemed disturbed and he was in the same clothes that he was wearing earlier when he visited him.

10. PW6 was Dr. Phyllis Muhonja of Embu Level 5 Hospital who reviewed the victim and produced P3. She stated that the victim had been examined by Dr. Gatei. She noted that there were spermatozoa cells present and the hymen was breached. That the victim had pain on her pelvic region and both knees and was treated for STI and fungal infections. She confirmed that there was vaginal penetration and she relied on the PRC form. On cross-examination she stated that she is also allowed to carry out psychiatric assessment and from her observation, the victim seemed distressed and confused and exhibited senile dementia from the medical history provided. That the fungal infection and raptured hymen might not have been as a result of rape. That pain in the knees is not exclusive to sexual offences but could be part of sexual assault. That the numerous blood cells observed are consistent with rape.

11. PW7 CI Salome Ihiga formerly the officer-in-charge of Kibugu Police Post stated that the victim was brought to the station at around 7:10p.m. on the day the incident was reported. That the victim said that the appellant had raped her. That she visited the home of the victim and spoke to her now deceased husband. That she drew a sketch map of the scene which she produced in court as evidence and stated that the incident occurred within 100 meters of her home. That the son of the victim brought an ID that was recovered at the scene. That the appellant was arrested at River Kiii where he was attempting to cross to Kirinyaga. On cross-examination, she said that the ID was recovered at the scene and not at the point of arresting the appellant. That the report was prepared by a different officer and not herself.

12. At the end of the prosecution’s case, the court found that a prima facie case had been established and the accused person was put to his defence.

13. DW1, the appellant stated that he was arrested by two people and taken to Kibugu Police Post where he was held for three days before being arraigned. That he had lost his ID ten days before and he had been looking for it. He denied raping the old lady and stated that he was not examined at the hospital. That the husband of the victim was not his friend and had always accused him of causing his wife to leave him. On cross-examination, he stated that the ID belonged to him but when he saw it, it had been mutilated. That he had reported loss of the said ID but nothing was recorded to that effect. He denied being at the crime scene or raping anyone.

14. DW2, Margaret Muthoni is the mother of the appellant who stated that his son was arrested in 2016 for rape. She stated that the appellant’s ID had gotten lost and was reported at Kathangariri but they told him to look for it first before any paperwork was done. That there was bad blood between PW5, the husband of the victim and the appellant because the appellant apparently influenced PW5’s wife to leave him and go to look for a job. That PW5 also used to make advances to the appellant’s wife and so they were never in good terms. On cross-examination, she could not fully account for the actions of the appellant at the time of the incident but she said that he was at home and even milked the cows.

15. This appeal was disposed of by way of written submissions and both parties complied.

16. It was the appellant’s submission that the testimony of PW2 was full of contradictions which shows that there was no rape incident neither was there a cry for help from the victim. He argued that he had lost his ID ten days before the incident and had reported, but the relevant officials told him to look for it first before they could record the loss, but he was arrested before he found it. That the trial magistrate while sentencing him, did not consider the four years he had spent in remand and he urged the court to consider the provisions of Section 333(1) of the Criminal Procedure Code in that regard. He also urged the court to review the twelve year sentence downwards as the same is harsh and excessive.

17. On its part, the respondent submitted that the elements of indecent act were proved as provided in the Sexual Offences Act. On identification of the perpetrator, reliance was placed on the case of Peter Musau Mwanzia v Republic [2008] eKLR and added that PW5 had seen the appellant before the incident and he also saw him running from the scene and he recognized his clothes. That PW1 and PW6 in their testimonies, verified that indeed penetration occurred. It relied on Sections 42, 43, 44 and 45 of the Sexual Offences Act on consent and stated that according to PW6, PW1 was not mentally unstable and therefore, she would have had capacity to give or deny consent to sexual intercourse. That in the appellant’s defense, he did not prove that he had reported the loss of his ID and in any event, the incident occurred shortly after he had left the compound of PW5. Reliance was placed on the case of Republic v Kipkering Arap Koske & Another [1949] EACA 135. It also argued that the trial court considered leniency before sentencing the appellant to 12 years imprisonment. It urged the court to uphold the findings of the trial court and relied on the case of Republic v Nicholas Wambogo [2022] eKLR.

18. Upon perusal of the petition of appeal, the trial court’s record and the submissions herein, the issues for determination are:a.Whether the charge was proved beyond reasonable doubt; andb.Whether the sentence was harsh and excessive.

19. I am aware of the role of an appellate court as stated in the case of Okeno v Republic [1972] EA 32 where the court held:-“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion. It must make its own finding and draw its own conclusions only then can it decide whether the magistrate’s finding should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”

20. On the first issue of whether the offences were proved beyond reasonable doubt, Section 3 of the Sexual Offences Act provides:“(1)A person commits the offence termed rape if-(a)he or she intentionally and unlawfully commits an act which causes penetration with his or her 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.(2)In this section the term "intentionally and unlawfully" has the meaning assigned to it in section 43 of this Act.(3)A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.”

21. The offence stems from Section 3 of the Sexual Offences Act where rape is defined. In order to determine the issue herein, this court will satisfy itself on three elements which together make up the elements to be proved for a conviction to be sustained. These are:a.Penetrationb.Lack of consentc.If there was consent it was obtained by force, or threats or by intimidation.

22. PW6 confirmed that the presence of numerous RBC confirms vaginal penetration. She also stated various other observations that she made including the presence of spermatozoa cells. PW1 also testified that she was forced into the coffee plantation and whoever did that also had sex with her then took off. This is sufficient proof that there was penetration.

23. From the testimony of PW1, she was raped and the assailant took off. It is not possible that she consented to the act. PW2 stated that when PW1 was found, she said that she did not want to be asked questions. PW6 in her professional opinion, stated that when she assessed PW1, her conclusion was that she is not mentally incapacitated but was suffering from senile dementia. That when she examined her, PW1 was distressed and confused. This means that PW1 was able to give or deny consent to sex and in this case, it is evident that she did not give consent. PW6 also noted that there were injuries on PW1’s knees and pelvic region. It is possible that the assailant forced himself on her at the time of the incident. It may well be that the consent to sex was obtained forcefully.

24. As to whether the appellant is the victim’s assailant, all the prosecution witnesses testified that the appellant’s ID was found at the scene of the crime. When the appellant was placed on his defense, he was not able to explain sufficiently why he had not reported the loss of his ID and if he had done so, why he could not produce proof that he had reported the loss. PW5 stated that he saw the appellant running away from the scene of the crime and he recognized him by the clothes he was wearing as they had spoken earlier that evening. In his defense, the appellant did not sufficiently rebut this position, neither did DW2. Going by the evidence on record, I am persuaded that the appellant was indeed the assailant.

25. On the issue of whether the sentence was excessive, the trial magistrate noted as follows:“The court considered the mitigation by the accused. He seemed remorseful however this is an offence he committed knowingly. He was also aware that this was an offence. The court considered the circumstances of the offence noting that the accused took advantage of the elderly lady who suffered from dementia. He is sentenced to 12 years imprisonment. The time spent in custody prior to posting bail and sentencing to be considered as part of his sentence”

26. The ideal sentence for this offence is ten years imprisonment which may be enhanced to life imprisonment. The trial magistrate considered many factors including time spent in remand and mitigation and sentenced the appellant to twelve years imprisonment. The trial court exercised its discretion on the matter and this court will not unsettle those findings. Further, and in concurrence with the trial magistrate, the appellant’s actions towards the complainant depict a very unfortunate scenario in light of the complainant’s age. In my view, society should shun such actions and in the case of the appellant, correction must be prescribed. Twelve years imprisonment is not harsh or excessive but it is sufficient for the appellant to go through the necessary correction for the good of society.

27. Therefore, I find that the appeal lacks merit and is hereby dismissed.

28. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 29TH DAY OF NOVEMBER, 2023. L. NJUGUNAJUDGE..........................for the Appellant..........................for the Respondent