[2023] KEHC 23612 (KLR)

Paul v Director of Public Prosecution (Criminal Appeal E052 of 2023) [2023] KEHC 23612 (KLR) (12 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23612 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E052 of 2023

TW Cherere, J

October 12, 2023

Between

Juma Paul

Appellant

and

Director of Public Prosecution

Respondent

(Being an appeal against conviction and sentence in Isiolo Criminal No. E257 of 2021 by Hon.L.K. Mutai (CM) on 31st April, 2023)

Judgment

Background 1. Juma Paul (appellant) was charged with two counts as follows.Count 1Attempted murder contrary to section 220(a) of the Penal Code (the Act).Count 2Rape contrary to section 3(1) (a) and (c) as read with section 3(3) of the Sexual Offences Act No 3 of 2006 (the Act).Both offences were committed against AN on March 24, 2021

2. Appellant denied the offence and the matter proceeded to full trial

Prosecution case 3. Complainant stated that on the night of March 24, 2021 at around 02. 00 am, appellant went to her house flashing a phone torch, threatened her daughter S aged 14 years with a knife then attacked her with a hammer with which he hit her on right side of face and twice on the neck from which she lost consciousness only to wake up and find appellant raping her in the presence of her daughter. It was her evidence that she identified appellant’s voice since they come from the same area and also recognized him from the light emanating from his phone torch. Complainant’s husband upon being informed by a neighbor concerning what had transpired returned home and escorted complainant to the [police station and also to hospital.

4. Upon examination by a clinical officer on March 25, 2021, complainant was found with swelling and tenderness on the neck and left hand from which it was opined that she had been assaulted and occasioned harm. On her genitalia, the clinical officer noted that her hymen was broken and had an old scar with no bleeding. He concluded that there was rape due to presence of blood in the urine.

5. Appellant denied the offence. He stated that on March 23, 2021, he was attacked by herders who seriously injured him. He came to in hospital and it was from there that he was arrested and charged to cover up the injuries that had been inflicted on him. He additionally stated that complainant was unknown to him

6. At the close of the trial, the learned trial magistrate by a judgment dated March 31, 2023 found the prosecution case proved. Appellant was sentenced to serve 1 ½ years for assault and 10 years for rape.

7. Dissatisfied with the conviction and sentence, the appellant lodged the instant appeal lodged the instant appeal mainly challenging the conviction and sentence on two main grounds that:i.Rape not provedii.Appellant’s identification as the perpetratoriii.Section 333(2) CPC not applied by the trial magistrateiv.Defence was not given due consideration

Analysis And Determination 8. I have considered the appeal in the light of the evidence on record and submission filed by the appellant the state not having filed any.

9. The standard of proof in criminal case such as this one must be beyond reasonable doubt enough to lead to a conviction. Our criminal justice system is pegged on article 50(2) (a) of the Constitution which guarantees individual freedoms under the bill of rights, particularly, the aspect of innocence until proven guilty. It cannot be gainsaid that this burden of proof rests on the state and does not shift to the accused.

10. I have considered the appeal and I shall deal with each of the grounds of appeal as hereunder.

Whether Penetration Was Proved 11. Upon examination a day after the alleged offences were committed, the clinical officer found that complainant had an old scar and that there was no bleeding. He however concluded that there was rape due to presence of blood in the urine. I have considered the conclusion by the clinical officer and I find that he failed to explain where the blood in the urine originated from having noted that there was no bleeding in or from complainant’s genitalia.

12. With respect what was required to be prove that rape had taken place was proof of penetration, an essential fact which the clinical officer’s evidence did not establish. From the foregoing, I find that the conclusion that complainant had been raped doubtful and the benefit of doubt ought to have been given to the appellant.

Whether Assault Was Proved 13. The clinical officer noted that complainant had swelling and tenderness on the neck and left hand and I therefore find that assault was proved.

Whether Appellant Was The Perpetrator 14. Visual identification in criminal cases can cause miscarriage of justice and should be carefully tested. The court in Wamunga v Republic (1989) KLR 424 at 426 had this to say:“Where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction.”

15. In the case of R v Turnbull, (1976) 3 All ER 551 Lord Widgery CJ observed as follows on identification: -“the quality of identification evidence is critical; if the quality is good and remains good at the close of the defence case, the danger of mistaken identification is lessened, but the poorer the quality, the greater the danger”.

16. In the recent case of John Muriithi Nyagah v Republic [2014] eKLR, the Court of Appeal held: -“in testing the reliability of the evidence of identification at night, it is essential to make an inquiry of the relevant circumstances such as the nature of the light, the strength of the light, its size, its position relative to the suspects etc.” (emphasis added).

17. Complainant stated that the only light in the room was the phone torch that was in the perpetrator’s hand. No evidence was led that the perpetrator at any time directed the light to himself. The offence was committed about in the dead of night at about 02. 00 am. The evidence on record reveals that the prosecution neither led evidence as to the strength of the light, its size and its position relative to the perpetrator nor did the court make inquiry of the same.

18. From the foregoing, I find that the circumstances pertaining to the identification of appellant, at night, was not free from error and the danger of mistaken identification was therefore great.

19. The other evidence that was adduced against the appellant was that he was identified by his voice.

20. Voice identification has received judicial consideration in numerous cases. To cite but only one, the court in Libambula v Republic [2003] KLR 683 held that:“Normally, evidence of voice identification is receivable and admissible in evidence and it can, depending on the circumstances, carry as much weight as visual identification. In receiving such evidence, care would be necessary to ensure that it was the accused person’s voice, the witness was familiar with it and recognized it and that the conditions obtaining at the time it was made were such that there was no mistake in testifying to that which was said and who had said it.” (Emphasis). See also Choge v Republic [1985] KLR 1.

21. Complainant stated that appellant was from her locality but no evidence was led that she had interacted with the appellant so as to be able to identify his voice.

22. The standard of proof in criminal case such as this one must be beyond reasonable doubt enough to lead to a conviction. Our criminal justice system is pegged on article 50(2) (a) of the Constitution which guarantees individual freedoms under the bill of rights, particularly, the aspect of innocence until proven guilty. It cannot be gainsaid that this burden of proof rests on the state and does not shift to the accused.

23. English case law is also replete with decisions which elucidated this standard of proof in a criminal case. Lord Denning in the case of Miller v Minister of Pensions(1942) A.C stated as follows: -“It need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadows of doubt. The law would fail to protect the community if it admitted forceful possibilities to deflect the course of justice. If the evidence is so forceful against a man to leave only a remote possibility in his favour which can be dismissed with the sentence, of course it is possible but not in the least probable, the case is proved beyond reasonable doubt but nothing short of that will suffice.”

24. The degree of proof in criminal cases was properly established in the classicus English case of Woolmington v DPP 1935 A C 462. Similarly, in Bakare v State 1985 2NWLR, Lord Oputa of the Supreme Court of Nigeria adopted the principle as follows at page 465: -“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability”.

25. Where there is doubt of any kind in a criminal matter, and evidence which would likely advance the case of the prosecution is not adduced, the effect of such an occurrence would go to the benefit of an accused person, in this case, the appellant.

26. From the foregoing analysis, I find and hold that the prosecution failed to prove that complainant was raped or that the injuries on her body were inflicted by the appellant.

27. I accordingly find that the conviction and sentence imposed on appellant were unsafe. Consequently, the conviction is quashed and sentence set aside. Unless otherwise lawfully held, it is hereby ordered that appellant shall be set at liberty forthwith.

DELIVERED AT MERU THIS 12th DAY OF OCTOBER 2023WAMAE. T. W. CHEREREJUDGEIn the presence of-Court Assistants - Kinoti/MuneneAppellant - Present in personFor the State - Ms. Rita (PC-1)