[2019] KEHC 6310 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL NO. 59 OF 2017

SAMSON SAITOTI SAING’U................APPELLANT

VERSUS

REPUBLIC..........................................RESPONDENT

(Being an appeal arising from the original conviction and sentence of the Senior Principal Magistrates

Court at Mavoko (Hon. L.A. Mumassabba, RM) delivered on 29TH February, 2016 in Mavoko Criminal Case No.10 of 2013)

JUDGEMENT

1. This is an appeal that was lodged herein on 10th February 2017by the Appellant, Samson Saitoti Saing’u, against the Judgment of the Learned Magistrate, Hon. L.A. Mumassabba, in Mavoko Criminal Case No. 10 of 2013. The Appellant had been charged before the lower court with the offence of Rape contrary to Section 3(1) (a) (b) (3)of the Sexual Offences Act, No. 3 of 2006. In the alternative, he was charged with committing an Indecent Act with an adult, contrary to Section 11(A) of the Sexual Offences Act. The offences were alleged to have occurred on 21st July, 2013 at [Particulars withheld] estate in Athi River district within Machakos County.

2. The Appellant, having denied the allegations against him before the lower court, was taken through the trial process and a Judgment was subsequently rendered by the Learned Trial Magistrate on 29th February, 2016. The Appellant was found guilty of the offence of Rape, was convicted and sentenced to serve 10 years' imprisonment. Being aggrieved by his conviction and sentence, the Appellant, preferred this appeal on the following amended grounds:

a)That the Trial Magistrate erred in law and fact by admitting and accepting the key prosecution witnesses evidence while the same was hearsay hence ought to have been dismissed;

b)That the Trial Magistrate erred in both law and fact by failing to note that the prosecution case was contradictory and the same deserved an acquittal;

c)That he was not accorded a fair hearing as stipulated by the constitution 2010;

d)That the Trial Magistrate erred in law and in fact by relying on oral assumptions concerning the age of the appellant;

e)That the Trial Magistrate erred in law and in fact by failing to adequately consider the defence testimony of the appellant;

f)That the Trial Magistrate erred in law and in fact by failing to note that the case lacked crucial eye witness and that the investigation officer failed to investigate the alleged crime as required by law;

g)That the Trial Magistrate misdirected himself by convicting the innocent appellant when the elements of the alleged offence were not proved beyond any reasonable doubt.

3. Accordingly, the Appellant prayed that appeal be allowed, conviction quashed, sentence set aside and he be set at liberty. He filed Amended Grounds of Appeal along with his written submissions; and although he did not seek or obtain leave prior thereto, Section 350(2)(v) of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya recognizes that an application for amendment of the Grounds of Appeal can be made at the hearing of the appeal. It is not clear whether the Supplementary Grounds were duly served on the Office of the Director of Public Prosecutions. However no objection has been made thereto by the State Counseland a perusal of the submissions indicates that the issues raised in the amended grounds had been duly captured therein. Accordingly, by dint of Article 159(2)(d) of the Constitution, the Supplementary Grounds are deemed to have been properly filed.

4. In his written submissions, the Appellant submitted that the evidence of Pw2 to Pw7 was hearsay evidence. He submitted that there were grave contradictions and the same should be resolved in his favour; he pointed out that the testimony of Pw1 stated that she was raped on 21. 6.2013 whereas the charge sheet indicated that the offence was committed on 21. 7.2013. He also submitted he was not accorded a fair hearing because he was not given time to file an application from Safaricom so as to avail text messages that he used to send to the complainant to prove that they were lovers. He submitted that the clinical officer did not tender evidence of the basis of his conclusion that the complainant was aged 27 years and that the trial magistrate failed to consider that the complainant was experiencing her menses and thus the only thing that Pw4 and 5 found was blood oozing and not hymenal tears. He submitted that there was failure on the part of the prosecution to call prosecution witnesses and cited the case of Bukenya v Uganda (1973) EA 549 which held that failure to call an essential witness would be adverse to the prosecution case. He also submitted that the evidence of Pw4 did not prove that the penetration was caused by a male organ but that the same was caused by a blunt object and therefore he had no burden of proving his innocence.

5. The appeal was opposed by learned counsel for the respondent who raised four issues for consideration, to wit; whether the prosecution proved their case beyond reasonable doubt; whether the evidence was marred with contradictions; whether the appellant was accorded a fair trial and whether the appellant’s defence was considered. On the first issue, counsel submitted that the ingredients of the Charge of Rape, to wit unlawful and intentional penetration of the genital organ by another and the absence of consent or consent obtained via threat or intimidation were well proved. He submitted that evidence was adduced by PW1 that she did not consent to the act of sexual intercourse. That through PW4 and PW5forceful penetration was proved because they testified that the complainant sustained injuries that were consistent with penetration by a blunt object and PW4specified that the injuries could have been caused by forceful penetration.

6. It was further the respondent’s submission that in considering the issue of contradictions, heed should be paid to the provisions in Section 382 of the Criminal Procedure Code where the litmus test is whether the prejudice is likely to be suffered by the appellant or that the same has an effect on the conviction and sentence. Counsel urged court to find the contradictions, if any as non-meritous and at most curable under Section 382 of the Criminal Procedure Code. On the issue of fair trial, counsel submitted that the appellant was put on his defence on 7th October, 2015 and the matter was scheduled for defence hearing on 28th October, 2015 and the hearing was adjourned at the instance of the appellant to 17th November 2015 where the same appellant informed the court that he did not have the data from Safaricom and the hearing was further adjourned to 1st December, 2015. Therefore the appellant had ample opportunity to compel the service provider to provide him with the information he required and in any event this ground is an afterthought for the same was only raised at the appeal stage. On the issue of consideration of the appellant’s defence, counsel submitted that the record of appeal and specifically the judgement of the trial court at page 12 to 19 bear witness that the said defence was considered and the court found that the same could not exonerate the appellant from the offence of rape since the prosecution evidence was cogent and consistent. Counsel in conclusion submitted that the appeal be dismissed and the conviction and sentence be upheld.

7. I have given careful consideration to the appeal and taken into account submissions herein. I am mindful that, in a first appeal such as this, the Court is under obligation to reconsider the evidence adduced before the lower court and come to its own conclusions thereon. In Okeno vs. Republic [1972] EA 32,the Court of Appeal for East Africa expressed this principle thus:

"An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination ... and to the appellate court's own decision on the whole evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions...It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses..."

8. The Prosecution called a total of seven witnesses in proof of the particulars of the charges, the first of whom was the Complainant (PW1).Her evidence was that on the 21. 1.2013 at about 5. 30 am she went to the appellant’s place to take milk and found the appellant was sleeping and she persistently knocked until he opened and he told her to assist him locate a pen from inside the house. In the process of looking for the pen, he pulled his mattress, threw it back, got hold of the complainant and threw her on the bed and put his tongue in her mouth then he pulled her skirt and forced himself into her and her attempts to push him away failed. She testified that she felt pain and noticed that the sheet was full of blood. She reported to the police at Athi River Police Station who referred her to Machakos Leve 5 Hospital where she was admitted. She denied being a lover of the appellant and she duly produced photographs of the stained sheets that were marked for identification. On cross-examination she testified that she was not able to scream because his tongue was in her mouth and he had folded her arms and that they had never exchanged SMS’s as lovers.

9. PW2, Anthony Wamalwa Juma, testified and told the trial court that he was an assistant caretaker in the area where the complainant and the appellant lived and that on the material day he did not go to the appellant’s house but heard what happened.

10. George Kale (PW3) told the court that he was at home and saw Pw1 on a motorcycle and she told him that she had been raped by the appellant and she was bleeding. He testified that he accompanied her to the police station and Machakos Level 5 Hospital.

11. Dr. Isaac Abdullahi Sheikh (PW4), told the court that he filled in the PRC form on 21. 7.2013 after examining Pw1. He observed that the complainant was bleeding from her genitalia and there was a tear in her internal part of her cervix that was later stitched and in his view the tear could have been caused by a blunt object. He produced the PRC form as the Prosecution's Exhibit No. 5 and thedischarge summary from Machakos Level 5 Hospital that was indicative that the complainant was admitted from 21. 7.2013 to 23. 7.2013 and the same was marked as Exhibit 2. On cross-examination, he testified that he did not find sperms because maybe there was no ejaculation, however the bleeding was caused by penetration that appeared to be forceful.

12. It was the testimony of PW5- Maureen Maitha that she filled in a P3 form on 25. 7.2013 pursuant to a bodily examination that was conducted on Pw1 who reported to have been raped. She observed that the cervix was torn and she was bleeding profusely and she then produced the treatment notes and P3 form as well as the treatment card as exhibits 1b, 3 and 4 respectively.

13. PW6 was Anne Wangechi Nderitua government chemist who confirmed receiving items from Pc James Wafula which comprised of blood samples, an orange skirt and white bed sheets and a condom. She testified that the DNA sample from the blood-stained skirt and the condom and the blood stained sheet showed that the DNA profile matched the blood sample of the complainant and the other DNA profile matched that of the appellant.

14. Pw7wasPc James Wafula, the Investigating Officer in the case. He testified that he was on duty at Athi River Police Station on 21. 7.2013 when the in charge notified him of a rape case and he visited the scene of the crime in the company of the appellant and gathered information that the appellant tried to seduce the complainant to sex and when she refused, he raped her. It was further the evidence of PW5 that he found traces of blood on the bed of the accused and he took pictures. He produced the same before the lower court together with the sketch plan and the towel and used condom. The appellant was arrested after investigations were concluded.

15. In his defence, the Appellant told the court that he and the complainant were lovers and they had sex consensually, they used two condoms but however her brother forced her to pursue the case. He testified that they even had sex when the appellant left custody and sought that Safaricom avail messages to indicate that they used to exchange love messages hence proof that they were lovers. He testified that he knew the appellant in the year 2012 and they were lovers.

16. From the foregoing summary of the evidence adduced before the lower court, the pertinent questions to pose in this appeal, granted the Appellant's Grounds of Appeal as well as the Supplementary Grounds are:

[a] Whether sufficient evidence was adduced before the lower court to prove the ingredients of the offence of Rape to the requisite standard;

[b]Whether the evidence adduced before the lower court absolved the appellant of the offence;

[c]Whether there were any constitutional infractions that would vitiate the conviction that was recorded against the Appellant.

17. On the first issue, Section 3 of the Sexual Offences Act provides for the offence of Rape in the following terms:

"(1) A person commits the offence termed rape if;

(a) he or she intentionally and unlawfully commits an act which causes 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.

(3) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life."

18. The Prosecution was under obligation to prove that there was penetration of the Complainant's genital organ by the appellant’s male organ and that consent for such penetration was procured by force. In this respect, the Prosecution and the Defence adduced uncontroverted evidence that the Complainant and the appellant were alone in the appellant’s house and they had sex. The complainant promptly reported the occurrence to her brother PW3and thereafter made a report to the Police, as was confirmed by PW7.

19. More importantly, the Clinical Officer who examined her and filled the P3 Form in her case, confirmed that the Complainant had a tear in the internal part of her cervix. That evidence is corroborative of the Complainant's evidence that she was subjected to penetration in the manner envisaged by Section 3(1)(a) as read with the definition thereof set out in Section 2 of the Sexual Offences Act. That evidence was controverted by the Appellant's defence before the lower court being that the sex was consensual. There was therefore need to establish before the lower court whether the appellant’s defence could be considered so as to absolve him of the offence.

20. In addressing the 2nd issue, the appellant testified that he and the complainant were lovers and they had sex consensually, they used two condoms however her brother forced her to pursue the case. He also testified that they even had sex when the appellant left custody and sought that Safaricom avail messages to indicate that they used to exchange love messages hence proof that they were lovers. He testified that he knew the appellant in the year 2012 and that they were lovers. The Prosecution evidence demonstrated that there was forceful sex because of the nature of the injuries suffered by the complainant. The appellant has alleged that there is inconsistency in the prosecution evidence that the date on the charge sheet is different from the one given in evidence. Whether or not the dates are different is an immaterial discrepancy, granted the credible and uncontroverted evidence that there was use of force on the genitalia of the complainant and the same was occasioned by the appellant in light of the evidence on record. I do note that Section 36 of the Sexual Offences Act provides for DNA testing, and the evidence of Pw6 points towards the fact that the appellant’s male organ was responsible for the forceful injuries to the cervix of the complainant for the DNA profiling was based on samples collected from the bed sheet that had profiles from both the appellant and the complainant. I therefore find that the appellant has not dislodged the weight of evidence against him and has not shown tangible evidence to prove that there was consensual sex despite alleging that there were text messages of a sexual inclination to prove that he and the complainant were lovers.

21. Oh the third issue, the appellant alleged that his rights under article 50 had been infringed because texts from Safaricom were to be availed to court to prove that he and the complainant were lovers. According to him, such evidence was necessary, and failure of the court to assist him to access the same was erroneous. I have noted that the appellant has raised the issue that he was not issued with the DNA report that was relied upon by Pw6 hence did not interrogate the same, however he was present during trial and had every opportunity to cross-examine Pw6 and did not challenge the evidence or ask any questions that would cast doubt on the said report and cannot be seen to belatedly raise this issue on appeal. He had all the opportunity to raise those issues before the trial court. In any event the complainant herself did categorically state that she did not consent to the sex and had immediately launched a complaint as soon as she left the appellant’s house. As there was absence of consent, I do not see how the appellant could wriggle out of the crime.

22. It is my considered view that the constitutional violations if any had no effect on the criminal trial as the same were curable under section 382 of the Criminal Procedure Code. There was no prejudice suffered by the appellant.

23. In the result therefore, I am satisfied that the conviction of the Appellant for the offence of Rape contrary to Section 3(1)(3) (a) (b) was based on sound evidence. Section 3(3)of the Sexual Offences Act provides for a sentence of not less than 10 years, which can be enhanced to life imprisonment. The Appellant was sentenced to 10 years' imprisonment that was well within the law as it was the minimum sentence possible in law.

24. The upshot is that there is no merit in the Appellant's appeal. The same is hereby dismissed in its entirety. The conviction and sentence by the trial court is upheld.

It is so ordered.

Dated and delivered at Machakos this 26th day of June, 2019.

D. K. KEMEI

JUDGE