[2005] KEHC 1626 (KLR)
The court found that the evidence of the complainant was credible and corroborated by the clinical officer's testimony and medical findings, including injuries and presence of seminal fluid. The appellant's claim that the complainant was his wife was not raised during cross-examination and was only brought up in his...
Source-derived case information.
- Citation
- [2005] KEHC 1626 (KLR)
- Parties
- Appellant: Stanley Cheruiyot Korir; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 430 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Conviction upheld; sentence reduced.
- Legal Topics
- Rape, Sexual Offences, Sentencing, Evidence Evaluation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stanley Cheruiyot Korir
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for rape and assault causing actual bodily harm was safe and supported by the evidence.
- 2 Whether the sentence imposed was excessive in the circumstances.
- 3 Whether the complainant was the wife of the appellant and if that affected the charges.
Ratio Decidendi
The court found that the evidence of the complainant was credible and corroborated by the clinical officer's testimony and medical findings, including injuries and presence of seminal fluid. The appellant's claim that the complainant was his wife was not raised during cross-examination and was only brought up in his defence, undermining its credibility. The trial magistrate properly evaluated the evidence and reached a correct decision. However, while the maximum sentence for rape is life imprisonment with hard labour, the circumstances warranted a reduction of the sentence from 15 years to 10 years with hard labour. The conviction was upheld, but the sentence was reduced.
Court Disposition
Conviction upheld; sentence reduced.
Orders
- The conviction for rape and assault causing actual bodily harm is upheld.
- The sentence of 15 years with hard labour is reduced to 10 years with hard labour.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU CRIMINAL APPEAL 430 OF 2003
STANLEY CHERUIYOT KORIR……………..……..APPELLANT
VERSUS
REPUBLIC…….………………….…………………RESPONDENT
J U DG M E N T
The Appellant has appealed against the original conviction and sentence in Molo Senior Resident Magistrate’s Criminal CaseNo.878 of 2003. In that case, the Appellant had been charged for the offence of Rape, contrary to Section 140 of the Penal Code. The second charge against the Appellant was that of Assault causing Actual Bodily Harm, contrary to Section 251 of the Penal Code. The Facts of the prosecution case as stated in the charge sheet for Count I are as follows:-
“On the16th April, 2003, at Sigowet in Olenguruone of Nakuru District within Rift Valley Province unlawfully had carnal knowledge of Karen Chepngeno without her consent.”
The facts of the prosecution case as stated in the charge sheetfor Count II are as follows:-
“On the 16th April, 2003 at Sigowet in Nakuru District of the Rift Valley Province assaulted Karen Chepngeno thereby occasioning her actual bodily harm.”
During the hearing of the appeal, the Appellant stated that the Complainant was his wife and that they had been married for 6 months. Besides the above, the Appellant complained that he wasnot examined by a Doctor and that all the witnesses had not been called to give their testimony.
Apart from the above, the Appellant also complained that the sentence imposed was excessive. In addition to the above, the Appellant also presented to the Court written submissions. The first ground in the written submissions is that the learned Magistrate erred in a matter of law and fact in convicting him relying solely on the evidence of the PW1. The other two grounds had actually been argued earlier.
On the other hand, the State through Mr. Gumo, Asst. DPP supported both the conviction and sentence. According to Mr. Gumo, the offence was perpetrated outside at around 2. 00 p.m. and that there was no evidence that the complainant was the wife to the Appellant. That apart, Mr. Gumo also submitted that when the complainant was examined, it was observed that her labia majora had been injured during the sexual assault. There was also seminal fluid that was found in the complainant’s vagina. In addition to the above, Mr. Gumo also submitted that the complainant was not mistaken in the Appellant’s identification as they were together for a considerable period of time. In conclusion, Mr. Gumo submitted that the 15 year jail term imposed on the Appellant was well deserved sine our society is trying to get rid of Rapists and other undesirable elements.
This Court has carefully perused the above together with the record of appeal which contains the Judgment of the learned Magistrate. Since this is the first Appellate Court, I have the obligation and duty to examine and evaluate the evidence afresh and reach my own conclusion.
From the evidence on record, it is apparent that the complainant viz, Karen Chepngeno was assaulted and raped by the Appellant on the material day. She explained in details how she faced the above ordeal on the material day. Her evidence was confirmed and corroborated by the PW2 -–Robinson Kipsingat who is a Clinical Officer at Olenguruone Hospital. The PW2 confirmed that the complainant had whip marks on her chest and abdomen. ThePW2also found seminal fluid from her vagina and that her labia majora had been injured. The PW2 also took a swab that revealed spermatozoa. The PW2 concluded that the complainant had been raped. Though the Appellant claimed that the complainant was his wife, he never brought up that issue during cross-examination. He only brought up the same in his defence.
Having perused the above evidence, I am of the considered opinion that the learned Magistrate viz, Mr. R. Kirui, S.R.M., had evaluated the evidence properly and came to the right decision. Since the conviction is safe and well merited, I hereby uphold the same.
As far as the sentence is concerned, the maximum provided byl aw is life imprisonment with hard labour. Given the circumstances of the case, the sentence of 15 years with hard labour is hereby reduced to 10 years with hard labour
It is only to that extent that the appeal succeeds.
MUGA APONDI
JUDGE
28th September, 2005
Judgement read signed and delivered in open Court in the
presence of the Appellant and Mr. Njogu.
MUGA APONDI
JUDGE
28th September, 2005.