[2023] KEHC 26309 (KLR)

Rintu v Republic (Criminal Appeal 5 of 2019) [2023] KEHC 26309 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26309 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal 5 of 2019

DR Kavedza, J

December 8, 2023

Between

Richard Mutengei Ole Rintu

Appellant

and

Republic

Respondent

(Being an appeal against the original conviction and sentence delivered by Hon. S. Shitubi (C.M) on 29th January 2019 at Kajiado Chief Magistrate’s Court criminal case no. 25 of 2017 Republic vs Richard Mutengei & another)

Judgment

1. The appellant with another not before this court were jointly charged with four counts of the offence of gang rape contrary to section 10 of the Sexual Offences Act, No. 3 of 2006. After a full trial he was sentenced to serve 15 years imprisonment on each of the four counts. The sentences were to run concurrently.

2. Being aggrieved, he filed an appeal challenging the conviction and sentence. The grounds raised in the petition of appeal have been summarised as follows: He challenged the totality of the prosecution’s evidence against which he was convicted. He also argued that the trial court failed to consider his defence.

3. As this is the Appellant's first appeal, the role of this appellate court of first instance is well settled. It was held in the case of Okeno vs. Republic [1972] EA 32, and further in the Court of Appeal case of Mark Oruri Mose vs. R [2013] e-KLR, that this court is duty-bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that.

4. EW,(PW3) recounted an incident where she and her husband, GS, were abruptly awakened by robbers in their home. The intruders demanded money and phones, taking her husband's phone. Subsequently, they compelled her to guide them to her mother-in-law's residence and announce their arrival. Upon opening the door, her sister-in-law MS (PW1) was confronted, and the robbers forcibly entered, instructing everyone in the house to lie down in the sitting room.

5. The attacker, threatening harm unless money was provided, took MS (PW1), their deceased mother, and CM to different rooms. Afterward, they returned and led EW to the kitchen, where she was sexually assaulted by multiple individuals. In her testimony, she identified the first accused (Jonathan Ole Meriani) as the second person to assault her, having been unable to recognize any of the assailants previously. EW identified the first accused by the illumination from a bright torch in the sitting room, as the kitchen door was open. She observed round marks on his cheeks and one eye, which reflected light when it shone on him.

6. MS (PW1) swiftly handed over the key when the robbers demanded money from her mother, stating that what they already had was insufficient. The intruders accompanied her to her mother's bedroom, where they took Kshs. 60,000 and then led her to her own bedroom, where they subjected her to sexual assault in succession.

7. While in the sitting room, MS saw the first accused illuminated by a flashlight as they demanded money from her mother. However, inside her bedroom, she could only recognize the first accused. During the robbery and assault, the accomplices used torches to search her room, providing enough light for her to see. MS observed that the first accused had one damaged eye and missing front teeth.

8. MS also identified the first accused by his voice when he spoke in Maasai, instructing the others to leave after they had all raped her. After being confined in her room briefly, they later returned and forcefully brought her back to her mother's bedroom, where her mother had also been subjected to sexual assault. In the sitting room, the robbers had taken MS's phone, which she later identified at the police station.

9. CM (PW2) and her husband, ES (PW5), were sleeping in her mother-in-law's sitting room when they were awakened by their sister-in-law, EM (PW3), calling for MS to open the main door. MS (PW1) opened the door, and E was pushed inside by about four intruders. Attempting to escape to the kitchen, CM was brought back to the sitting room by the intruders, who then ordered everyone to lie down.

10. With the mother-in-law and GS(PW4), EW's husband, now inside, the robbers declared their mission to retrieve money or threaten harm. CM promptly handed over Kshs. 12,000 from the bedroom. The first accused, identified by a bad eye, took her wallet and the money. He instructed her to tell the other robbers that he had taken only Kshs. 3,500. The first accused had a torch in his armpit, pointing downwards, allowing CM to clearly see him, especially the bad eye. She had not provided this description in her police statement because the recording officer did not ask her for a description.

11. After the first accused left with the money, another unidentified robber raped CM. She was then forced back to the sitting room as the intruders demanded more money and phones. At this point, they took MS's phone and later took CM and her mother to the bedroom, where they were subjected to sexual assault before being brought back to the sitting room, where EW was raped in succession.

12. GS (PW4) and ES (PW5) were both in the sitting room during the entire incident. George, attentive to the attackers' voices as they demanded money, later identified them at an identification parade based on their voices. He denied encountering the first accused before the parade.

13. ES (PW5) could hear the robbers sexually assaulting the women, even as his wife pleaded with them, stating that she was pregnant. He observed them returning to the sitting room and dividing the money, their torches reflecting on the wall and making it possible to see them. Emmanuel identified the first accused by the reflection in his eye when light shone on it and the second accused who is the appellant herein by his voice. He later identified both accused individuals at an identification parade, the first accused through his voice and a damaged eye, and the second accused through his voice. Following the morning attack, the matter was reported to Isinya Police Station, and the victims were taken for treatment to Nairobi Women Hospital - Kitengela.

14. Dr. John Njuguna (PW8), a Clinical Medicine and Surgery certificate holder at Nairobi Women Hospital Kitengela, presented Post Rape Care Reports and P3 forms related to MS (PW1) and the deceased RS on behalf of Dr. Patrick Musyimi. The findings confirmed that both had been gang-raped. Christine Kilosho (PW11), also a Medical Clinical Officer at Nairobi Women Hospital Kitengela, produced Post Rape Care forms and P3 forms filled during the examination of EW (PW3) and CM Mara (PW2) by Clinical Officer Ruth Langete. The conclusion was that they had also been gang-raped.

15. Inspector Matilda Wanjiku (PW6) from Isinya Police Station was part of the initial investigating team when the crime was reported. She recorded witness statements and then transferred the investigations to the DCIO's Office in Isinya.

16. Inspector Job Wafula Wanyonyi (PW12), the Deputy DCIO in Isinya, took over the case. He collected Post Rape Care Forms and P3 forms from Nairobi Women Hospital - Kitengela related to the victims. Upon learning that a phone, among other items, had been stolen during the crime, he directed the collection of phone data and tracked the phone.

17. Police Constable Victor Kenga (PW13) from the DCI's Criminal Intelligence Section collected and tracked the data of the phone (belonging to PW1. It was found in use in Limuru, and Samuel Kinyanjui Waita (PW10) was identified as the user. He led the investigators to the seller, Paul Muigai Kuria (PW9), a phone repairer in Limuru.

18. Paul Muigai (PW9) guided them to the first accused, Jonathan, who had sold the phone for Kshs. 700, claiming it belonged to his wife and citing financial difficulties. The first accused implicated the appellant as his accomplice and cooperated with the police in apprehending him.

19. Statements were recorded from Samuel Waita (PW10) and Paul Mungai (PW9) as witnesses. Both accused individuals were subjected to an identification parade conducted by Inspector Oteyo Isaiah (PW7). The witnesses, EW (PW3), Emmanuel Suyianka (PW5), and GS (PW4), identified both accused individuals, while MS (PW1) identified only the first accused.

20. Inspector Oteyo Isaiah (PW7) clarified that he conducted a single parade for both suspects, and the participants were members of the public from the local community, not from the police cells. He refuted claims that Paul Mungai (PW9) and Samuel Waita (PW10) were part of the same parade. Regarding the identification of the appellant, he explained that witnesses identified him through touch and did not hear him speak. The officer presented the parade identification form. The officer also produced post-mortem forms related to the deceased RS.

21. After the close of the prosecution’s case, the appellant and his co-accused were found to have a case to answer and were put on their respective defences. They gave sworn testimony and did not call any witnesses. The first accused, Jonathan Ole Merian, informed the court that on the date of the offense, October 30, 2016, he was in Limuru. Regarding the stolen phone, he claimed that the appellant Richard Mutunkei, sold it to him. During cross-examination by the appellant, Jonathan stated that the appellant had approached him for money, citing a shortage of petrol. Jonathan borrowed Kshs. 1,500, under the condition that the appellant handed over his phone as collateral until the money was repaid.

22. However, when Jonathan tried to contact the appellant, he received no response, prompting him to sell the phone to recover his money. Jonathan asserted that there was a witness to support his claim, but he couldn't call him as he came from a distant location in Narok. He also claimed that the Investigating Officer had summoned a person named Daniel to be present before the identification parade.

23. The appellant, Richard Mutunkei, explained that he received a phone call from someone claiming to be Jonathan, stating that he was under arrest. Later, his wife called, informing him that he was arrested by the police as he went to meet her. Upon arrival, he found the first accused under arrest, and Jonathan alleged that he had given the police a random number leading to his arrest, promising to retract his statement but failing to do so. The appellant denied informing the police about someone selling him the phone and selling it to the first accused.

Analysis and determination. 24. The offence of gang rape is provided for under Section 10 of the Sexual Offences Act. The said section states as follows: -10. Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less fifteen years but which may be enhanced to imprisonment for life.

25. Under Section 10 of the Act, the key ingredients of the offence of Gang Rape include:a)Proof of rape or defilement;b)Proof that the assailant was in association with another or other persons in committing the offence of rape or defilement or that the assailant did not per se commit the offence of rape or defilement, but with common intent, was in the company of another or others who committed the offence.

26. Was the offence of rape committed? Section 3 of the Act defines ‘rape’ as follows:(1)A person commits the offence termed rape if –(a)he or she intentionally and unlawfully commits an act which cause 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.”

27. Section 2 of the Act defines ‘penetration’ as: the partial or complete insertion of the genital organs of a person into the genital organ of another person. This position was fortified in the case of Mark Oiruri Mose vs R (2013)eKLR when the Court of Appeal.

28. In demonstrating this particular ingredient of the offence, PW 3 and PW 2 were abruptly awakened by robbers demanding money and phones. The intruders took their phones and forced her to guide them to her mother-in-law's residence. Upon entry, PW1 was confronted, and the robbers instructed everyone to lie down in the sitting room. The attackers took PW 1, their deceased mother, and CM to different rooms, later returning to sexually assault Evelyn in the kitchen. She identified the first accused, Jonathan Ole Meriani, based on a bright torch's illumination. MS handed over the key, leading the robbers to her mother's bedroom where money was taken. They then subjected her to sexual assault in her bedroom. In the sitting room, MS identified the first accused illuminated by a flashlight, and inside her bedroom, she recognized him by his damaged eye and missing front teeth. MS also identified the first accused by his Maasai voice. CM attempted to escape to the kitchen but was brought back to the sitting room by the intruders, who ordered everyone to lie down. The three were then raped in succession.

29. PW 4 and PW 5, were both in the sitting room during the entire incident and corroborated the evidence of PW 1, PW 2 & PW 3.

30. The medical practitioner PW 8 confirmed that PW8, a MS (PW1) and the deceased Rhoda Suyianka, confirming that both had been subjected to gang rape. Additionally, PW11, another Medical Clinical Officer at the same hospital, Christine Kilosho, provided Post Rape Care forms and P3 forms from the examination of Evelyne Wangui (PW3) and CM Mara (PW2) by Clinical Officer Ruth Langete, concluding that they too had experienced gang rape.

31. On the aspect of the consent, Sections 42, 43, 44 and 45 of the Act deals with that aspect at length. Section 42 states as follows:For the purposes of this Act, a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice

32. Sections 43, 44 and 45 of the Act goes into great detail in describing instances where one’s consent cannot be said to have been obtained. From the above statutory description of the consent and going by the testimony of the complainants it can be clearly seen that they never consented to the sexual activity with the assailants. The attackers were armed and threatened the complainants and their family members with death on raising alarm or resisting any command given. The use of threats and the weapons coupled with the theft that occasioned are some indicators that indeed the assailants used force and threats on the complainants as opposed to them consenting to the act. I therefore find that the complainants that the Mother did not consent to the sexual acts as it all happened against their will.

33. This Court therefore comes to the finding that the offence of rape was committed on the complainant. Since the offence the Appellant is facing is gang rape, I will now consider the other limb as to whether there were joint assailants and if so if they had a common intention in the commission of the offence.

34. The offence was committed during the night inside the house of the Appellant. The complainants narrated how the appellant in the company of Jonathan had sex with them successively. Subject to identification, he Jonathan committed the offence in association with another person who is alleged to be the Appellant. The two had common intention.

35. On identification, the PW 1 , PW 2 and PW 3 identified the 1st accused, Jonathan through his damaged eye. PW 4 and PW 5 identified the appellant through his voice. In addition, the 1st accused pointed to the appellant as an accomplice although denying any involvement in the crime. In addition, the stolen phone was traced to the appellant. This placed him at the scene of crime.

36. From the evidence on record, the prosecution’s witness evidence on the appellant’s identification was not shaken on cross-examination. Although there was an issue with the identification parade, this was not enough to find that the appellant was not involved in the offence he is convicted of.

37. By placing the prosecution’s evidence and the defence side by side and on the guidance of the binding case law I find that the complainant, PW 4 and PW 5 had ample opportunity to see the assailants during the incident. The defense is outweighed by the prosecution’s evidence. The identification of the Appellant herein as the one who was in the company of Jonathan when they jointly and in turns gang raped the complainant resulting in the death of one of them while undergoing treatment is hence without any error.

38. The upshot is therefore that the offence of gang rape was proved in law and the appeal on conviction is hereby dismissed.

39. On sentence, the appellant was sentence to serve 15 years imprisonment on each count. The sentences were to run concurrently. In the sentencing proceedings, the trial court considered the appellant’s mitigation. Section 329 of the Criminal Procedure Code, gives judges and magistrates, in appropriate cases to consider mitigation and mete out a sentence that fits the offence committed despite another sentence being provided for under the Act in which the offence is prescribed.

40. I have considered the circumstances of the case and I see no reason to interfere with the sentence meted out by the trial court. The appeal on sentence therefore fails. The upshot of the foregoing analysis is that the appeal against conviction and sentence is found to be lacking in merit and is dismissed.

Orders accordingly.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF DECEMBER 2023D. KAVEDZAJUDGEIn the presence of:Nyaroita for the StateAppellant presentMateli C/A