[2022] KEHC 12498 (KLR)

Wafula v Director of Public Prosecutions (Criminal Appeal E038 of 2021 & Miscellaneous Application E013 of 2021 (Consolidated)) [2022] KEHC 12498 (KLR) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12498 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal E038 of 2021 & Miscellaneous Application E013 of 2021 (Consolidated)

WM Musyoka, J

July 8, 2022

Between

Solomon Wafula

Appellant

and

Director of Public Prosecutions

Respondent

(An appeal from the conviction and sentence in Butali SPMCRCSO No. 27 of 2018, by Hon. C.N. Njalale, Senior Resident Magistrate, delivered on 25th August, 2020)

Judgment

1. The appellant was convicted of rape, contrary to section 3(1) (a) (b) (3) of the Sexual Offences Act, No 3 of 2006, Laws of Kenya, in Butali SRMCSO No 27 of 2018. He was sentenced to serve ten years in jail. The allegation was that he had, on August 20, 2018, at [Particulars withheld] area, Bukhakunga, Burudi Location, Kakamega North, intentionally and unlawfully caused his penis to penetrate the vagina of LNN, without her consent.

2. The republic called four (4) witnesses. PW1 was the complainant, she testified that at about 7. 00 pm, the appellant pounced upon her as she was going home from the shops, tore her clothes, threw her to the ground and raped her. She screamed. Michael Onywera came to the scene and the appellant escaped. She reported the matter to her father. She was taken to hospital the following day, and a report was made to the police at Kabras. PW2 was the Clinical Officer who examined PW1, and found that she had been raped. PW3 was the father of PW1. He narrated how PW1 reported to her, her ordeal in the hands of the appellant, and the steps that were taken thereafter. PW4 was the investigating officer. The appellant was put on his defence. He conceded to meeting PW1 on August 20, 2018, on her way to the shops. She screamed and he ran away to his house. He said that it was a frame-up, and referred to a family dispute. He said he was assaulted by PW3. His witnesses testified to seeing the appellant being assaulted by PW3, but the matter was not reported to the police.

3. The appellant was aggrieved, by his conviction and sentence, hence the appeal herein. He avers that he did not get a fair trial under article 50 of the Constitution; the case was not proved beyond reasonable doubt; the penetration was not proved; there was no medical or forensic evidence to link him to the offence; there were contradictions and inconsistences in the evidence, exculpatory testimonies of prosecution witness were not considered; and the findings by the court were against the weight of the available evidence; and his defence was not given consideration.

4. In his written submissions, the appellant addressed two general areas; lack of corroboration of the evidence and unfair medical investigation. Under uncorroborated evidence, he addressed three things: the circumstances of his identification in view of poor light; contradicting statements on what he was wearing, and whether PW1 had had a long or short call after the incident and before medical examination. Let me deal with all the issues.

5. On corroboration, after the incident, PW1 reported to PW3, who reported the matter to the police. PW2 was the Clinical Officer who attended to PW1, and confirmed the alleged rape. PW4 was the investigating officer, who confirmed the fact that a report of the alleged offence was made at Kabras Police station, and that she investigated the same and charged the appellant. There was adequate corroboration of the offence. On the circumstances of identification. PW1 said it was 7. 00 pm, when it all happened, and that the area of the incident was bushy, but she said she was able to identify the appellant when he grabbed her. She reported him as Solomon to the 1st respondent. I take judicial notice of the fact that 7. 00 pm is the early part of evening time, and it is usually not too dark. PW1 saw the appellant as they were in close proximity for long enough, from the time he grabbed her, tore her clothes, threw her to the ground, and removed her panties, to when he was lying on top of her. On what he was wearing, I will reiterate the above, it was early evening and the appellant was in physical contact with PW1, close enough for her to note what he was wearing. On whether PW1 had had a long or short call, that would have washed away the spermatozoa, the medical evidence presented by PW2 pointed to presence of spermatozoa. Once PW2 presented evidence showing that the high vaginal swab he did on PW1 revealed presence of spermatozoa, the burden of proof shifted. The appellant did not challenge PW2 on whether a long or short call would have washed the sperms away; and did not present counter-medical evidence.

6. On what he called unfair medical investigation, he cites section 36 of the Sexual Offences Act, to say that he was not tested to confirm whether the spermatozoa found on PW1 was his, so as to connect him to the offence. PW2 confirmed that the appellant was not presented to him for testing, to confirm whether the spermatozoa was his. However, it is the law that for sexual offences the trial court need not rely only on medical or forensic evidence to convict. It would suffice for the court to find the complicity of the accused person from the other evidence presented. PW1 was clear that she identified the appellant as her assailant, and she conveyed that information to her father, PW3, the same day, indeed minutes thereafter, and they visited the home of the appellant. There was adequate corroboration. The appellant, himself, talked of having been at the scene at the material time. On whether PW1 reported assault by Solomon Wafula, that is the appellant herein, or Solomon Okanga, to PW4, I have looked at the record. PW2 and PW3 are the persons who knew the appellant prior to the incident. The incident was reported to the police. The police might have recorded Solomon Okanga as the assailant, but that does not take away from the fact that the person PW1 and PW3 identified on the day of the incident, August 20, 2018, was the appellant Solomon Wafula. On the inability to avail Michael Onywera to testify, I agree that he would have been a key witness. He was said to be the reason the appellant ran away. He would have been central to provide corroborative evidence. However, the failure to call him was not fatal. There is adequate corroborative evidence to establish the fact of commission of the offence by the appellant.

7. In the petition of appeal, the appellant mentions article 50 of the Constitution. However, he did not elaborate on which particular right was violated. Since he did not submit on the issue, I shall take it that the ground was abandoned.

8. Overall, I find that there is no merit in the appeal, to warrant me disturbing the findings made by the trial court. I shall accordingly dismiss the appeal, affirm the conviction and confirm the sentence.

JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 8THDAY OF JULY 2022W M MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Solomon Wafula the appellant, in personMs. Kagai, instructed by Office of Director of Public Prosecution, for the Republic