[2008] KEHC 3955 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

(CORAM: OJWANG, J.)

CRIMINAL APPEAL NO. 426 OF 2006

BETWEEN

PETER KARIUKI…………………………. APPELLANT

-AND-

REPUBLIC………………………………...RESPONDENT

(An appeal from the Judgement of Principal Magistrate Mrs. Murage dated 31st July, 2006 in Criminal Case No. 350 of 2005 at Kikuyu Law Courts)

JUDGEMENT

The charge brought against the appellant was that he had committed an unnatural offence contrary to s.162(a) of the Penal Code (Cap.63, Laws of Kenya). It was particularised that the appellant, on 20th March, 2005 at [particulars witheld] Shopping Centre in Kiambu District, in Central Province, had carnal knowledge of J N M against the order of nature.

In the alternative, the appellant was charged with the offence of indecent assault on a male contrary to s.165 of the Penal Code; the particulars in this regard being that the appellant, at [particulars witheld] on 20th March, 2005 indecently assaulted J N M, by undressing him and touching his buttocks.

PW1, Dr. G.K. Mwaura, examined the complainant on 21st March, 2005 when the complainant presented with a history of having been sodomised. PW1 found that the complainant’s clothes had patches of dry soil. The complainant had pain and tenderness to his head, buttocks and anus; and this was consistent, in PW1’s testimony, with sodomy.

On cross-examination, PW1 confirmed that the complainant had come with complaints of sodomy, and that the features he found, upon examining the complainant, were consistent with sodomy. PW1’s examination had been conducted one day after the alleged act of sodomy, and, in these circumstances, he testified, it did not follow that semen and blood could be diagnosed. The complainant, when examined, had a painful rectum – and this, in PW1’s testimony, was consistent with sodomy.

PW2, Solomon Kimani, testified that he was at a friend’s shop on 20th March, 2005 when one Muhindi (PW3) called him to witness a scene, near the dump-site; and when he got there, he found the appellant herein lying on top of the complainant and sodomising the complainant. The complainant lay face-downwards, with the appellant lying on top. Both the appellant and the complainant, at the time, had their trousers pulled down; and as they proceeded with their motions, a crowd gathered at scene. The activity in question was taking place in an open place, in the dark; and Muhindi switched on his torch, which enabled PW2 to come close, and to perceive the spectacle. PW2 left after witnessing the incident. He had known the appellant for some four years. On the following day he recorded a statement with the Police, regarding the incident.

On cross-examination, PW2 said he had been at the shopping centre when the saidMuhindi called him to witness the sodomy-spectacle. PW2 stood five metres from the locus in quo as he watched he complainant lying down, and the appellant lodged on the complainant from behind.

PW3, Paul Muhindi Kamau, was on duty at [particulars witheld] (the nature of the duty is not stated) on the material date, at 8. 00 p.m. He had to go to the latrine, and took the keys for that facility, as well as a torch, to light up his way. As he approached the latrine, he heard some commotion; and so he called PW2 to accompany him to check the origin of the disturbance. When they conducted a check, they came upon the appellant herein, lying on top of the complainant, and the two recumbent men had their trousers pulled down. PW3 immediately recognised the two men. Word went round, and a censorious crowd formed at the locus in quo; they expressed objection by battering and arresting the appellant herein.

On cross-examination, PW3 said he very well knew both the complainant and appellant – they had been PW3’s customers. The complainant is probably 30-odd years old, while the appellant is several years younger. At the beginning, the complainant and the appellant had been talking to each other, in a manner suggesting disagreement; but when PW3 returned there with PW2, they were no longer talking; and the appellant was sodomising the complainant. PW3 did not know if this act of sex was consensual. PW3 and PW2 had audibly remonstrated with the two recumbent men on their objectionable conduct; and it is this precisely which drew the irate crowd to the scene.

PW3 said he knew the complainant to be a person of unsound mind, and thus the crowd’s ire fell mainly upon the appellant herein. PW3 flashed his torch at the two men; and when he demanded to know cause for this impropriety, the appellant stood up and started dressing up; and the crowd caught up with him as he was dressing up. The appellant gave no response to the questions put to him; and neither did the complainant say anything. The crowd had barely witnessed the sodomy-act, when they started delivering punishment; it fell upon PW3 to restrain the crowd; but the crowd went ahead and arrested the appellant herein.

PW4, Martin Njoroge Ng’ang’a, who is a bus conductor, was in a [particulars witheld] shop at 8. 00 p.m. on the material day. He had been drawn to the locus in quo when PW2 and PW3 found an apparent act of sodomy in progress. PW4 went to the scene in the company of others who had been in the shop. PW4 saw the appellant staggering away after he and his consort were illuminated by torch-light, and he formed the impression that the appellant was drunk.

PW5, J N M, of [particulars witheld] (the complainant), testified that on 20th March, 2005 at 8. 00 pm, the appellant came to him, removed his trousers, and sodomised him; he felt pain, and a burning sensation. A crowd was drawn to the locus in quo, and its members beat up the appellant, arrested him, and took him to the Police station. PW5 was taken to see a doctor. The appellant, who was known to the complainant, was later charged in Court.

PW6, Simon Kimani,of [particulars witheld], was standing near a bar at the shopping centre, on the material date at 8. 00 p.m. He, along with others, were drawn to the locus in quo where the appellant was in the act of sodomy; and members of the public came along, and arrested the appellant.

To cross-examination, PW6 said both the complainant and the appellant had removed their trousers and were lying down.

PW7, Timan Macharia Gitau, a driver, was at [particulars witheld] at the material time, and was one of those in the crowd who responded to PW3’s alarm, and went to the locus of quo. He found that both the complainant and the appellant had no trousers on, and they were performing the act of sodomy. PW7 and his friends screamed, raising the alarm, and members of the public came along and arrested the appellant herein.

PW8, Police Force No. 65948 Police Constable Peter Gakuru of Riu Nderi Police Post, testified that on 20th March, 2005 the appellant herein was brought along to the Police Post by members of the public, who reported that he had been found sodomising the complainant. PW8 re-arrested the appellant, and detained him in the Police cells.

PW9, Police Force No. 83804 Police Constable Mar Kilonzo of Kikuyu Police Station, testified that on the material date and at the material time, he was at his office. PW9 booked in the Occurrence Book the sodomy-report which came from [particulars witheld], in respect of the appellant herein. PW9 recorded the complainant’s statement, and issued him with a P3 medical-reporting form. After the complainant had been medically examined, PW9 laid the sodomy-charge against the appellant herein.

On the foregoing state of the evidence, the trial Magistrate put the appellant to his defence; and the appellant elected to make an unsworn statement, which ran as follows. The appellant lives at [particulars witheld], and is a 22-year-old unemployed man. On the material date, at 10. 00 a.m., he had been in the company of a friend of his; but he was alone at about 6. 00 pm., when he met certain people known to him, and these people spontaneously started battering him, and took him to the Police station. Only after he had been held for three days did he learn that a charge was being brought against him.

The learned Magistrate assessed the evidence as follows:

“PW5, the complainant, testified that [the] accused, who was known to him, found him at the [bus-] stage. [The accused] removed his trousers and started sodomising him. PW2 and PW3 were the first [to reach] the scene. They found the accused in the act, while PW4, PW6 [and] PW7 were called to the scene and found [the] accused lying on top of the complainant, sodomising him.

“The accused has denied the offence. He told the Court that PW4…had a grudge with him because he had taken [PW4’s] girlfriend. [But the] accused has not alleged any grudge on the part of the complainant [PW5] or on the part of PW2, PW3, PW6 and PW7. They were all eye-witnesses. The accused had not challenged their evidence. His defence is a mere denial with no supportive evidence. I have carefully considered the evidence before me, and I find that the prosecution evidence is overwhelming….”

The learned Magistrate dismissed the appellant’s defence as “a lie”, found him guilty, convicted him and, after treating the appellant as a first offender and taking into account his mitigation statement, sentenced him to serve a fourteen-year jail term.

In his grounds of appeal the appellant contends as follows: (i) that the prosecution evidence was contradictory, and should not have led to a finding of guilt on his part; (ii) that no medical evidence had been produced showing that he had sodomised the complainant; (iii) that the trial Court had erred in law and in fact, in not attaching any weight to his defence; (iv) that there had been no proof beyond reasonable doubt; (v) that the sentence imposed had been harsh and excessive.

The appellant presented the foregoing points in both written and oral submissions; and in the oral part, his main contention was that at his age in the 20’s, and that of the complainant in the 30’s it could not be true that he had overpowered and sodomised the complainant.

Learned State counsel, Mrs. Obuo submitted that the prosecution’s nine witness had tendered convincing, unchallenged evidence that, indeed, the appellant did commit the offence of sodomy on the material night, as charged; PW2, PW3, PW4, PW6 and PW7 who went to the scene of crime, had sufficiently corroborated the testimony of the complainant (PW5). All the said witnesses had found the appellant in the act of sodomy, lying atop the complainant; and all of them said they knew both the appellant and the complainant, so that there was no possibility of a mistaken identity. Medical examination of the complainant only a day later, moreover, confirmed the sodomy hypothesis: complainant had pain and tenderness on the buttocks and anus. Counsel urged that commission of the offence of sodomy upon the complainant, had been confirmed beyond reasonable doubt. She urged that the appeal be dismissed, as the appellant’s defence was merely an afterthought.

I was unable to believe the appellant’s evidence, that he knows not of the happening, on the material night, of the act that led to the charge herein. The many witnesses who came to the locus in quo at the material time (PW2, PW3, PW4, PW6 and PW7) cannot be lying, as their testimonies are candid, consistent, and mutually corroborative. What these witnesses saw at the locus in quo was the act of sodomy being enacted. The actors were both men well known to all these witnesses. So they could not have made any mistake of identification. These witnesses saw that the man committing sodomy was the appellant herein; and the “victim” was the complainant (PW5). The question, therefore, whether the appellant at his relatively young age had the power to subdue and sodomise the older complainant, is not relevant. What the law censures is the act of sodomy; and sodomy was being committed on the material night.

The learned Magistrate in exercise of her discretion, imposed a fourteen-year jail term. Even though this sentence was said to be too harsh, it was just a bare claim, without any justification given. Sentencing falls to the discretion of the trial Court, save where it is said to have been exercised illegally, or it took a manifestly excessive form. Neither of those grounds was argued before me.

Consequently, I hereby dismiss the appellant’s appeal; uphold the conviction; affirm sentence.

Orders accordingly.

DATEDand DELIVEREDat Nairobi this 16th day of April, 2008.

J.B. OJWANG

JUDGE

Coram: Ojwang, J.

Court Clerk: Huka

For the Respondent: Mrs. Obuo

Appellant in person