[2022] KEHC 14982 (KLR)

Omollo & another v Republic (Criminal Appeal 4 of 2019) [2022] KEHC 14982 (KLR) (8 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14982 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal 4 of 2019

FA Ochieng, J

November 8, 2022

Between

Erick Owuor Omollo

1st Appellant

Erick Ochieng Okoth

2nd Appellant

and

Republic

Respondent

(Being an appeal from the Conviction and sentence of the SPM’s Court at Maseno by Hon. R.S. Kipngeno (SRM) dated 14th day of February 2019 in Criminal Case No. 534 of 2017)

Judgment

The appellants, Erick Ochieng Okoth and Erick Owuor Omollo, were convicted for the offences of robbery with violence contrary to section 296 (2) of the Penal Code; and gang rape contrary to section 10 of the Sexual Offences Act. 1. In respect of each offence, the appellants were sentenced to 20 years imprisonment, each. However, the trial court ordered that the sentences would run concurrently.

2. In their appeal, the appellants raised 9 grounds to challenge both the convictions and sentences. The said grounds of appeal can be summarized as follows;i.The sentences were manifestly harsh.ii.The medical evidence was unreliable due to contradictions.iii.Crucial witnesses were not provided by the prosecution.iv.The identification parade was irregular, as it was not conducted in accordance with the Police Service Act.v.The evidence adduced was marred with inconsistencies, hence unsafe to base a conviction upon.vi.No expert from Safaricom was produced to prove the alleged communications with the complainant.vii.The case was poorly investigated.viii.The evidence of recovery was not proved beyond reasonable doubt.ix.The defence was not given due consideration.

3. When canvassing the appeal the appellants first submitted that there was no positive identification. That submission was premised on the fact that the offence had been committed at night, where there were unfavourable circumstances for proper identification.

4. As far as the appellants were concerned, the fact that in the P3 form, the assailants were described as “unknown”, was an indication that the complainant had not identified her assailants.

5. The appellants also pointed out that neither of them was arrested at their respective homes, where the complainant’s stolen items were recovered from.

6. And, in any event, the appellants submitted that there was no evidence to prove that the items which were allegedly recovered, belonged to the complainant.

7. On the issue of the identification parade, the appellants said that the police had coached the complainant.

8. As regards the offence of rape, the appellants submitted that the same was not proved through any medical evidence.

9. They noted that the medical evidence showed;a.Normal outer genitalia.b.No lacerations/bruises.c.No spermatozoa noted.d.No reddened cervix.

10. It was their case that although the hymen was broken, that could have been caused by various activities such as horse-riding or tight garments.

11. The appellants further submitted that the credibility of the complainant was doubtful, because it could not be established that she actually lost her phone.

12. In their opinion, the prosecution ought to have led evidence to connect them to the phone: and that should have been done by dusting the phone to verify if the finger-prints of the appellants were traced on the said phone.

13. As regards the sentences, the appellants submitted that mandatory minimum sentences were unconstitutional. Therefore, they invited the court to consider the circumstances that surrounded the offence, with a view to coming up with appropriate sentences.

14. In that respect, the appellants reminded the court that each of them is a first offender, who is a breadwinner for their respective families. They also said that they were remorseful.

15. Being the first appellate court, i am obliged to re-evaluate all the evidence on record. I will conduct that exercise, whilst bearing in mind that I did not have advantage of observing the witnesses when they were giving evidence.

16. For that reason, I shall remain alive to the fact that when the learned trial magistrate made a finding on a matter of fact, based on his evaluation of the demeanour of a witness, this court must be extremely slow to consider deviating from such a finding.

17. PW1 is the complainant. She hailed from [particulars withheld] town.

18. She testified that she had seen a job vacancy which had been posted online, on facebook. The said advertisement had been posted by someone named Ericko.

19. PW1 chatted with Ericko on WhatsApp. She was informed that she could work at [particulars withheld], and that she would be paid by Mpesa.

20. However, prior to being given the job, PW1 was to undergo training in Kisumu.

21. PW1 travelled to Kisumu, with a view to taking part in the training. When she contacted to “Ericko”, he said that he was far-off. After considerable delay, “Ericko” sent “Reagan” to pick-up PW1 from the bus-stage.

22. Although the man who was said to be “Reagan” was supposed to take PW1 to “Ericko’s” house, the person led her to a bush, which was up a hill.

23. Once there, the person was joined by “Ericko”, and they raped her severally. They also went away with her mobile phone, money, purse and clothes.

24. PW1 found her way to a home in the neighbourhood where the incident occurred.

25. PW2 is the person whose home the complainant found refuge after the assailants had abandoned her.

26. He escorted her to the home of the Village Elder (PW3). However, when PW2 reached there PW3 was not at home.

27. On the advice of the area Assistant Chief, PW2 took the appellant back to his home, so that she would rest until the next morning.

28. When the Village Elder saw the complainant, blood was oozing from her private parts.

29. PW4 was a Clinical Officer at the Jaramogi Oginga Odinga Teaching and Referral Hospital. She testified that the presence of epithelial cells on the person of the complainant was an indication of friction during sex or of an infection.

30. Having examined the Complainant, PW4 concluded that she had been gang raped.

31. PW4 informed the Court that samples were taken to the Government Chemist for analysis.

32. PW5 is the Police Officer who conducted the Identification Parades for the 2 Appellants.

33. He said that the Complainant picked out the Appellants from their respective parades.

34. PW5 said that the 1st Appellant told him that he was suspicious that the officers had shown to the Complainant, some of his photos.

35. Meanwhile, the 2nd Appellant had no complaints about the parade.

36. I note that the 1st Appellant is now asserting that he was shown to the Complainant prior to the parade. That is a complete shift from what PW5 told the trial Court about; and yet the 1st Appellant did not cross-examine the police officer about it.

37. PW6 worked at the Government Chemist, Kisumu. He testified that they received the following samples;a.High vaginal swab from the complainant;b.Swab from the saliva of the complainant;c.Saliva swab from each of the 2 appellants.

38. PW6 explained that the principle upon which DNA works was that all persons are different. The DNA comprises half of each parent. Therefore, it is possible to determine the origin from body fluid.

39. In this case, the DNA samples generated from the Complainant was a mixed DNA profile of the Complainant, and the 2 Appellants.

40. PW7 was the arresting officer. He said that the 1st Appellant was arrested at his home. Thereafter, it was the said 1st Appellant who led the “Flying Squad” officers to the home of the 2nd Appellant.

41. PW8 was the Investigating Officer. He confirmed having taken the Complainant to the Jaramogi Oginga Odinga Teaching & Referral Hospital. He also confirmed that after the Complainant was examined, samples were taken from her and taken to the Government Chemist for analysis.

42. PW8 said that at the home of the 2nd Appellant, the police recovered incriminating items. Those items included the Complainant’s grey handbag; a small porch containing make up, roll-ons, eye-pencil, lip balm and lip glow.

43. According to PW8, the Complainant had a description of the Appellant from her facebook screenshot.

44. Furthermore, the witness chatted with the 1st Appellant, using the phone number which the Complainant had been using to communicate with him.

45. In one text which PW8 received, the 1st Appellant confirmed that the number was his, although he had registered it using his father’s Identity Card.

46. PW8 gave the name of the father (of the 1st appellant) as James Okoth Ngala.

47. He further testified that the 1st Appellant obtained his phone number from the facebook account of the officer, and that he downloaded the photos of PW8. He then posted the photos, stating that PW8 and an undercover sleuth, were CID officers.

48. I note that during cross-examination, the 1st Appellant suggested to PW8 that his photos were shown to the Complainant.

49. After PW8 testified, the prosecution closed its case.

50. In his defence, the 1st Appellant attributed his tribulations to a frame-up by one William Opiyo, who was his neighbor. He said that he quarreled with the neighbour when he had gone to recover his financial debt from him. The neighbour vowed to revenge.

51. When he refused to bribe the police officers who had arrested him, they preferred the charges against him.

52. He said that he did not even know the 2nd Appellant.

53. On his part, the 2nd Appellant said that the police officers who arrested him told him that there was a photo of his on social media.

54. Later, the Complainant said that she had been raped by persons who she had met on facebook.

55. But the 2nd Appellant said that he did not have any facebook account.

56. When he was questioned about the co-accused, the 2nd Appellant contradicted him. He said that he and his co-accused know each other, contrary to what the 1st Appellant had said.

57. The foregoing is the totality of the evidence on record. I will now re-evaluate it, whilst bearing in mind the submissions herein.

Identification 58. The Complainant met the 2nd Appellant in broad daylight. She was with him for a considerable length of time.

59. She saw him clearly, and noted that he had a scar on the left side of the face. She also noted that he walked with a limp.

60. As regards the 1st Appellant, the Complainant said that she marked his appearance when the man was on top of her. The proximity between the 2 of them was that close. And each of the Appellants assaulted the Complainant severally. I have no doubt that she was able to identify each of them positively.

61. Immediately after she reached the home of PW2, the Complainant described her assailants to her benefactor.

62. PW3 also testified that when he talked to the Complainant, she told him that she had been defiled by 2 young men who she could identify.

63. And when PW5 conducted Identification Parades, the Complainant picked out the Appellants.

64. Finally, when the Government Chemist analyzed the DNA of the Complainant and of the Appellants, it transpired that the samples from the Complainant’s swab contained a mixture of her DNA, together with the DNA of both Appellants.

65. Therefore, there cannot be any doubt whatsoever that the Appellants had both raped the Complainant, leaving critical evidence in her body. I find that there cannot be any more definitive or conclusive nexus between the Appellants and the Complainant.

66. If there might have been any doubts about the identification of the assailants, the same evaporated completely, in the light of the DNA evidence.

Identification Parades 67. The Appellants did not put forward any substantive challenge to the manner in which the parades were conducted.

68. During the trial, the 1st Appellant suggested that the police officers had showed his photo to the Complainant. But when canvassing his appeal, the 1st Appellant suggested that the police had shown him to the Complainant.

69. First, the Complainant was never confronted with either suggestion, during cross-examination. Secondly, the contention being made during this appeal is inconsistent with what was alluded to during the trial.

70. I find that the submissions herein were simply an afterthought which does not dent the propriety of the identification parades.

Medical Evidence 71. The learned trial magistrate cited the case of Mark Oiruri Mose vs Republic (2013)eKLR, in which the Court of Appeal held as follows;“Many times the attacker does notcomplete the sexual act duringcommission of the offence. That isthe main reason why the law doesnot require that evidence ofspermatozoa be availed. So long asthere is penetration, whether onlyon the surface, the ingredient of theoffence is demonstrated, andpenetration need not be deepinside the girl’s organ ……”

72. I find that it is not a requirement that the medical evidence should show that the Complainant suffered physical injuries. Therefore, the fact that the outer genitalia was normal and also that there were no lacerations or bruises to the Complainant’s genitalia, does not mean that she was not raped.

73. The Complainant was forced to undress. The assailants assaulted her sexually. And she had not given her consent to their heinous actions.

74. The acts were conducted at night; in a bushy area, high up on the hills which were located in an area to which the Complainant was a stranger.

75. One assailant had possession of her bag and other items (including her phone), whilst the other assailant was armed with a panga.

76. The Complainant had neither the freedom nor the capacity to consent.

77. I find that the assailants intentionally and unlawfully molested the Complainant sexually; and that they did so without her consent.

Recoveries 78. The Complainant’s property, which the assailants had robbed her of, were recovered from the house of the 2nd Appellant.

79. The said recoveries constituted further proof of the nexus between that Appellant and the offences for which he was convicted.

Credibility 80. Although the Appellants alluded to an alleged lack of credibility on the part of the Complainant, I found no merit in the said assertion.

81. The conclusive DNA evidence corroborated the testimony of the Complainant.

82. I find that there is no legal requirement that the prosecution should adduce evidence to show that an accused person’s finger-prints were found on the Complainant’s property, which was recovered in the possession of the said accused.

83. Even if the finger-print impressions were not found on the stolen items which were then recovered, that would not necessarily exonerate the accused person, in whose possession the items were recovered.

Expert Evidence 84. The evidence against the Appellants was not predicated upon expert evidence that would have been provided by Safaricom or any other service provider.

85. Whether or not the Appellants (or either of them) had facebook accounts would not diminish the evidence adduced, which proved the offences of robbery with violence and rape, respectively.

Inconsistencies 86. It is an accepted rule that minor discrepancies and inconsistencies are normal when witnesses testify about matters which they may have seen, even when they had been together at the material time.

87. Indeed, there might be instances in which evidence which is wholly without any discrepancy could cause the court to have suspicion about its authenticity.

88. In this case, I have not found any inconsistencies or discrepancies which are material.

Defences 89. I find that the 1st Appellant’s assertion, that he had been framed; and also that he did not even know his co-accused, is without any merit. I so find because the evidence adduced was so overwhelming and conclusive that the defence put forward did not cast any doubt on it.

90. Similarly, the evidence against the 2nd Appellant proved that he committed the offences, I find that his defence failed to weaken the solid case which the prosecution had proved against him.

Sentences 91. The learned trial magistrate did not hand down the sentences on the grounds that they were of a minimum mandatory nature.

92. The Appellants were given the opportunity for mitigation, and the trial court took into account the mitigation.

93. The sentences were lawful and reasonable. There is no basis upon which this Court could interfere with the said sentences.

94. Accordingly, I dismiss the appeal in its entirety. I uphold both the convictions and the sentences.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 8TH DAY OF NOVEMBER, 2022. FRED A. OCHIENGJUDGE