[2023] KEHC 26311 (KLR)

Siri v Republic (Criminal Appeal 62 of 2019) [2023] KEHC 26311 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26311 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal 62 of 2019

DR Kavedza, J

December 8, 2023

Between

Amos Elva Siri

Appellant

and

Republic

Respondent

(Being an appeal against the original conviction and sentence delivered by Hon. Okuche SRM on 26th September 2018 at Loitoktok Magistrate’s Court Sexual Offences Case no. 7 of 2018 Republic vs Amos Elva Siri)

Judgment

1. The appellant was charged and after a full trial convicted for the offence of rape contrary to section 3 (1) (a) (b) (c) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve 10 years imprisonment. Being aggrieved, he filed an appeal challenging his conviction and sentence.

2. The ground of appeal have been coalized as follows: He challenged the totality of the prosecution’s evidence against which he was convicted. He challenged the sentence as being harsh and excessive. He urged the court to vacate his conviction and set aside his sentence.

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 Republic [2013] eKLR that this court is duty-bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its 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. The prosecution called three (3) witnesses in support of their case. Joseph Ndonga Kariuki (PW 2) told the court that on 9/6/2018 at around 7. 30 pm he went to the appellant’s house to fetch water for him. On arriving, the appellant locked the door and threatened to kill him with a panga which he was holding. He beat him up, slapped him and tied his hands from behind. He proceeded the undress him and sexually assaulted him by putting his penis into his anus. The appellant then chased him away. He reported the incident at Loitoktok police station the following day. He was also referred for treatment. He identified the appellant as the perpetrator.

5. Abdi Hussein Sheikh (PW 1) a clinical officer at Loitoktok Hospital examined the complainant on 11/6/2018. It was a case of alleged sexual assault. He had swelling on the back of the head and a red eye. His thorax and abdomen was also bruised. He also had tenderness on the anal region. Upon examination, he concluded that there was anal penetration. in addition, there was injuries sustained were a result of a blunt force trauma. He produced the P3 and treatment notes.

6. CPL Augustine Mwango (PW 3) the investigating officer told the court that the complainant reported the case of alleged sexual assault. The perpetrator was someone known to him. He had injuries on the head and on the hands. The complainant was taken to hospital and the appellant arrested. He also visited the scene and recovered a panga and rope used to assault the complainant.

7. After the close of the prosecution’s case, the appellant was found to have a case to answer and was put on his defence. In his defence, he gave sworn evidence and did not call any witnesses. He told the court that the that on the material day, he was called by three individuals who started assaulting him. He was later arrested and charged accordingly. He denied committing the offence.

Analysis and determination. 8. I have re-evaluated the evidence on record. The ingredients of rape which the prosecution must prove are set out in section 3(1) of the Sexual Offences Act, 2006;A person commits the offence termed rape if –(a)He or she intentionally or 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.

9. From the evidence on record, the complainant narrated how the appellant sexually assaulted him when he went to his house to paid for water he had delivered. Before he was assaulted, the appellant had threatened him with a panga and beat him up. He then proceeded to tie him up and sodomize him. This was done in the appellant’s house.When the appellant was taken to the Police Post, he was accompanied by the complainant.

10. When the appellant was put to his defence, he denied committing the alleged offence. He said that he was incriminate and did not know the complainant. However, he told the court that he was assaulted by the complainant’s brothers. There is therefore no doubt that the appellant was a stranger to the complainant. His identification was therefore by recognition. His defence was therefore an afterthought.

11. The medical examination revealed that the complainant had been the victim of some physical interaction with somebody. That person was identified by the complainant, as being the appellant.

12. The fact that the medical officer of health found tenderness on the complainant’s anal region is consistent with the complainant's testimony. In fact, the medical evidence corroborates the evidence of the complainant. As soon as there was proof that the assailant used his genital organ to penetrate the genital organ of his victim, the offence of rape would have been committed.

13. Section 2 of the Sexual Offences Act defines the word “Penetration” as follows:-“Penetration means the partial or complete insertion of the genital organs of a person into the genital organs of another person.”

14. In this case, the complainant testified that the appellant inserted his penis into the complainant's anus.

15. The complainant also positively identified his assailant the appellant herein. It was the complainant’s evidence that his consent was not acquired before the appellant engaged in sexually assaulting him. It is my finding that the elements of the offence of rape were proved beyond reasonable doubt.

16. On sentence, the appellant was sentenced to serve 10 years imprisonment. The sentence imposed by the trial court is legal. This is after considering the appellant’s mitigation.

17. The upshot of the foregoing is that the appeal is found to be lacking merit and is hereby dismissed.

Orders accordingly.

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