[2022] KEHC 3322 (KLR)

Republic v Mulwa (Criminal Appeal 37 of 2019) [2022] KEHC 3322 (KLR) (5 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3322 (KLR)

Republic of Kenya

In the High Court at Kitui

Criminal Appeal 37 of 2019

RK Limo, J

July 5, 2022

Between

Republic

Appellant

and

Duncan Ngau Mulwa

Respondent

(Being an appeal from the judgement and acquittal of the Respondent herein by the Honourable Z.J. Nyakundi –SPM dated and delivered on the 24th November, 2019 in Mutomo SPM’s court Criminal Case S.O. No. 7 of 2019)

Judgment

1. In this appeal the state, through the Office of the Director of Public Prosecution is the appellant and the appeal is against the judgement of Hon. Z.J. Nyakundi delivered on 24. 11. 2019 through Mutomo Sexual Offence Case No. 7 of 2019 where he respondent was charged with the offence of rape contrary to Section 3 (1) (a) as read with Section 3(3) of the Sexual Offence ActNo. 3 of 2016.

2. The particulars of the main charge was that on 1st June 2019 at about 05 45 hours in Ikutha Sub-County within Kitui County, the respondent intentionally and unlawfully caused his penis to penetrate the vagina of SMM.

3. The respondent denied committing the offence and after trial he was acquitted by the trial after the trial court found that the prosecution’s case had not been proven beyond reasonable doubts because the trial court found doubts in the prosecution’s case. The State felt aggrieved by that finding and lodged this appeal. Before I set down the grounds raised I will briefly give a summary of the evidence tendered at the trial court.

4. SMM (PW1), the complainant testified that she left her place of work on 31/5/2019 at around 10PM and headed to the house she had rented but on reaching the gate to the residence, she found it locked and she did not have a spare key of the lock used to lock the gate. She testified that she called her cousin, one K who also resided in the same plot but she could not get her. She added that he had the number of the respondent who also resided on the plot and called him as well but the respondent did not answer the call. She stated that she decided to look for alternative place for accommodation at a place called Salama Lodge and that at 5am the following day, the respondent called her and notified her that the gate was open. The Complainant testified that at around 5:30 am she went back to her house and entered in without locking the door behind and that the respondent followed her into the house and found her naked. She stated that he grabbed her throat and raped her. She further testified that after the rape ordeal, she called her boss and her parents and notified them of what had happened.

5. She testified that her parents travelled from Makueni and reached the place around at 6am upon which they proceeded to an AP Camp to report. She added that they were referred to Ikutha Level 4 Hospital where she was examined and treated.

6. MNM (PW2) a mother to the complainant testified and corroborated the evidence of her daughter (PW1). She further testified that she is the one who rented the house for her daughter and that she was staying alone at the material time.She further confirmed that her daughter called them on 1/6/2019 at 6am and reported that she had been raped. She stated that in the company of her husband she rushed to where her daughter was residing and that she assisted her daughter to go and report the incident at the police before escorting her to hospital for treatment.

7. EJM (PW3) the father to the Complainant, testified and largely corroborated the evidence given by his daughter (PW1) and the wife (PW2).

8. Dr. Omar Ahmed (PW4), the medical officer summoned to testify, stated that the complainant (PW1) went to Ikutha level 4 hospital on 1/6/2019 with a complaint of rape and was attended to by Clinical Officers. The doctor stated that he examined the complainant and noted some tears on her vagina with whitish substance. He further noted that the hymen was broken. He tendered treatment chit as P Ex 1 PRC Form as P Ex 2 and P3 as P Ex 3. The doctor concluded that there was forceful penetration based on findings of tear on labia manora and majora.

9. Uchi Mwangombe (PW5), the Investigation Officer in the case testified and narrated the action taken when they received the report. He testified that the complainant reported to Ikutha Police Station after being referred there at Mugambani AP Post. He testified that the complainant complained of neck pains and pain in her private parts and reported that she had been raped by a person known to her. The police officer added that he arrested the respondent on 6. 6.2019 and that the respondents house was directly opposite the complainant’s room.

10. When placed on his defence, the respondent in an unsworn statement conceded that the complainant called him on 31. 5.2019 at around 11PM asking him to help her open the gate.The respondent stated that he went to the caretaker and added that a person named Ann Mule also received her call asking for help. He denied raping the complainant stating that he was not aware that she had come back to her house at 5am after spending the night in a lodging. He wondered why the complainant did not scream if she had been raped. He also wondered why he was arrested after 6 days yet her resides in the same plot. He defended himself that the doctor’s findings may have been caused by another man. He stated that he was framed and that he stays with his wife.

11. SMM (DW2) the land lord of the premises rented by both the complainant and the respondent testified and corroborated the evidence of PW2 in respect the fact that she was the one who sought for and paid for the premise where the complainant resided.

12. He recalled that on 31. 5.2019 at around 10PM the respondent called him and asked him to open the gate and that he only came to learn about the incident when the respondent was arrested.

13. The trial court evaluated the evidence tendered and found some doubts about the prosecution’s case despite finding that there was evidence of penetration. What the trial found doubtful was that the Complainant could have slept anywhere upon finding the gate locked and that no one could tell what occurred in where she spent the night. The trial court also found it hard to believe that the complainant could not have raised an alarm to attract the attention of other tenants after the ordeal. The respondent was acquitted on that basis.

14. In its petition of appeal, the appellant raised the following grounds namely;i.That the learned trial magistrate erred in law by misapplying the defense by the Respondent herein by failing to consider all the circumstances of the case by inviting all the relevant witnesses to corroborate the evidence or the victim/complainant herein.ii.That the learned trial magistrate erred in law and fact by relying on extraneous issues leaving out an outright evidence of forceful penetration which was painfully expressed in court and supported by the evidence of the medical doctor that the injuries sustained by the victim were forceful.iii.That the learned trial magistrate erred in fact and law by failing to make his own assessment and finding with regard to the offence of rape and strangulation thereto as per the evidence so adduced.iv.That the learned trial magistrate erred in law and fact by failing to accept and/or appreciate the evidence that the respondent and the complainant/victim were neighbours and probability of the commission or omission of the offence was very high based on the evidence on record.v.That the trial magistrate erred in law and fact by dismissing the evidence of the medical officer who produced medical documents in support of the evidence and charge on record.vi.That the learned trial magistrate erred in law by failing to give thought and life to the mode of identification of the respondent herein as he attacked and committed the offence of rape.

15. In its submission through Mr. Okemwa learned Counsel representing the State, the appellant faulted the trial court for putting undue weight on the defence case and failing to consider the weight of its case.

16. He submitted that they were able to prove the necessary ingredients of the offence that is penetration and lack of consent. Mr. Okemwa pointed out that the trial found that penetration had been proved but faulted it for not finding that that there was force used.

17. The state contends that the complainant and Respondent knew each other well because they resided on the same plot and the incident happened at 5:30am in the morning. He contested the trial court finding that rape could only have been established if forensic evidence had been tendered to show that it was the respondent who raped the complainant. He relies on the decision of Daniel Kimani versus Republic[2018] eKLR.

18. The respondent has opposed this appeal through oral submissions made by his learned Counsel Mr. Mwalimu.

19. The appellant contends that he was unpresented during trial and there were a number of issues that required further interrogations. The appellant avers that there were other tenants residing in the same plot including the caretaker and complainant’s cousin M/s K. He further contends that the complainant’s house was near because the parents only took 30 minutes to reach the scene when they received the report regarding rape.

20. The respondent submits that the complainant spent a night at Salama lodge but could not tell if she paid for accommodation or spent with someone else. He submits that if the complainant was raped she could have been raped by someone else wondering why she could not alert her cousin who lived in the same plot if she was raped at the plot. He also wondered why the complainant did not inform the caretaker about the rape and opted instead to call her boss and parents.

21. The appellant further contends that the doctor could have noted signs of strangulation if it is true that the complainant was strangled to stop her from screaming and raising alarm.

22. He submits that the doctor who examined her found her pregnant and that perhaps the complainant feigned rape to explain her pregnancy to her parents. He further submits that there was no witness who corroborated her evidence regarding where she had spent her night and contends that the complainant may have felt bitter when the respondent failed to pick her phone the previous night when she found the gate locked.The respondent asked for a retrial if this court was to find anomalies at the trial so that the veracity of the evidence tendered could be tested.

23. This court has carefully considered this appeal and the grounds raised. I have considered the response made by the respondent through Counsel. This court as an appellate court is obligated to re-evaluate the evidence tendered at trial with a view to reaching own conclusion cognizant of the fact that unlike the trial court, I did not get the benefit of seeing the demeanor of witnesses as they testified.

24. AS observed above the respondent was charged with the offence of rape Contrary to Section 3(1) (c) of the Sexual Offence Act. There are 3 elements which must be established and proved for the charge to be sustained. They are: -i.Intentional and unlawful penetration.ii.Lack of consentiii.Or if the consent is obtained by force, or by means of intimidation or threats.

25. The appellant has faulted the trial court for failing to properly assess the evidence tendered and arriving at the wrong conclusion.

26. This court has outlined the evidence tendered at the trial and from that evidence it is not contested that the complainant arrived late at her place of residence on 31st May 2019. She arrived at 10PM to find the gate locked which is something that was not extra ordinary given that most premises at that hour are normally closed for security reasons. The girl stated that she did not have a spare key and her attempts to get assistance to gain entry from her cousin and the respondent were in vain.

27. The respondent in his own defence conceded to that narrative and the caretaker/landlord (DW2) also alluded to that fact. He stated that he was alerted by the respondent at around 11PM to open the gate but when he did so he found no one waiting at the gate of course at that time the complainant had left because she stated that when she failed to get assistance from her cousin and the respondent who also resided in the same plot, she went and sought alternative accommodation at Salama Lodge.

28. I have keenly considered the evidence of the complainant and find that she had no reason/basis to falsely frame the respondent. The two had not differed and no evidence was tendered to that effect.

29. The Complainant stated that she went back to her room which was adjacent to the respondent’s house and that the respondent had called her at around 5am to inform her that the gate had been opened.The complainant narrated that she entered her room and did not lock the door behind and that the respondent entered unexpectedly with a towel rubbed around his waist and found the girl naked without a pant. The respondent then held her neck and raped her. The girl was found at a vulnerable state because probably she had just undressed since she did not expect anyone intruding at that hour. She stated that she could not scream because the respondent held her by the throat.

30. The appellant contends that the doctor could have noted signs of strangulation but the doctor’s focus may have been on the private parts of the complainant to establish if she was raped.

31. The doctor (PW4) in my view corroborated the complainant’s evidence in respect to elements of rape. The doctor stated that he examined the victim who had not showered after the rape and noted ‘‘tears’’ on her vagina and traces of white substance coming out of her vagina. The doctor stated that on microscopy sperms were seen plus red blood cells indicative of penetration. He further noted that there was a tear on the labia manora and majora and lacerations on the vagina which made the doctor conclude that the penetration was forceful. That in my view established that penetration was caused by means of force or under coercive circumstances. The elements well defined under Section 3(1) and 43(1) (a) of the Sexual Offence Act were well established by the medical evidence (P ex 1, 2 & 3) tendered by the doctor. The same corroborated the evidence of the complainant and the trial court in my view fell into error when it misdirected itself in regard to the fact.

32. The trial court as pointed out by the appellant placed undue weight on the defence put forward which defence in the first place was unsworn.

33. The trial court also fell into error when it questioned the reaction of the victim during and after the ordeal. The trial court found it difficult that the complainant could not scream or had no chance to scream but, here is a young lady who unexpectedly found someone entering her room when she was naked. The shock of being found naked in the first place is destabilizing to most people and it is difficult to reason well in those circumstances. The respondent went inside the room rubbed in a towel around his waist and took the girl by surprise and raped her.

34. I also find that the learned trial magistrate fell into error by relying on statement of defence which as I have stated was unsworn and untested through cross examination. He found that the defence put forward had been supported or given credence by the fact that when the respondent called the caretaker and found him, he tried calling the complainant but someone known as ‘‘Dan Mule’’ answered the phone. The trial court found that that is the person who had slept with her that night.’’In my view, the trial court put undue weight on the unsworn statement of defence by making a finding which was a bit remote given the medical evidence suggesting that the victim exhibited signs of forceful entry. If the sex was consensual as suggested there would be no tears or lacerations. The doctor in the P3 in fact remarked clearly that there was ‘‘forceful fresh penetration.’’ The medical examination was done a few hours after the rape which helped the doctor make credible findings.

35. The complainant knew the respondent well and the incident took place in the morning. There was no chance of mistaken identity. I also find the applicant’s contention that the complainant may have been unhappy because he did not assist her have the gate open the previous night a bit lame. The complainant herself testified that the respondent had asked her to give him her number which means that he could perhaps have been eyeing her for a while and given that he lived just next door, he had the opportunity to commit the offence.

36. This court also finds it contradictory for the trial court on hand to find that the victim had spent the night with ‘‘Dan Mule’’ and on the other hand find that ‘‘there is evidence of complainant having been raped.’’ As I have found out above, there was no evidence tendered to show any motive by the complainant to frame the respondent. The victim called her boss and her parents after the ordeal. The respondent wonders why she could not call her next door cousin or the caretaker but people react differently after such an ordeal. Perhaps the first person that came to her mind are her parents and her boss. She certainly cannot be faulted on that account.In the end this court finds that this appeal is merited. The trial court fell into error to find doubts in the prosecution’s case where non-existed. The respondent has stated that the girl may have feigned rape in order to offer an explanation on the pregnancy because she was single but that is speculative at best because the marital status of the girl was never revealed at the trial. The issue of pregnancy was not connected with the rape incident. The doctor just testified that he found the girl pregnant when he examined her but did not give the age of pregnancy.

37. This Court was also requested to order for a retrial by the respondent but I do not find any basis for that. The prosecution’s case against the appellant was overwhelming and it proved beyond doubt that the Respondent committed the offence.In the premises I allow this appeal and set aside the acquittal by the trial court in its place the appellant is hereby convicted as charged. I will grant him an opportunity to mitigate before I pass an appropriate sentence.

DATED, SIGNED AND DELIVERED AT KITUI THIS 5TH DAY OF JULY, 2022. HON. JUSTICE R. K. LIMOJUDGE