[2023] KEHC 27167 (KLR)

Wambia v Republic (Criminal Appeal E095 of 2022) [2023] KEHC 27167 (KLR) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27167 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal E095 of 2022

PJO Otieno, J

December 1, 2023

Between

Justus Obonyo Wambia

Appellant

and

Republic

Respondent

(Being an appeal from the conviction and sentencing of Hon. Dolphina Alego (SPM) in KakamegaCMC SO Case No. 129 of 2018)

Judgment

1. The appellant was arraigned before the Senior Principal Magistrate at Kakamega in Sexual Offences Case No. 129 of 2018 charged with the offence of rape contrary to section 3(1) as read with section 3 of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on the 18th day of October 2018 in Kakamega Central District within Kakamega County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of MW without her consent.

2. In the alternative, the appellant was charged with the offence of committing an indecent act with an adult contrary to section 11(A) of Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on the 18th day of October 2018 in Kakamega Central District within Kakamega County, the appellant intentionally and unlawfully touched the vagina of MW with his penis against her will.

3. He denied the charges by pleading not guilty to the charges and the case proceeded to full trial with the prosecution calling five (5) witnesses.

4. PW1, the complainant, testified that she was 18 years old and that on 18/10/2018 at about 2AM she was coming from a funeral with her co-wife. There was a man walking ahead of them who scared the co-wife, who had a baby with her, with a panga thus making the co-wife fall down. She tried running to escape but since she was expectant, the assailant caught up with her and threw her to the ground. He then removed her trousers and panty and raped her next to the pond. She raised an alarm and the people at the funeral heard her distress call and came to her resque. Her assailant then tried to escape but was then apprehended with only a t-shirt onand no trouse. Her mother took her to hospital that night where she was treated and thereafter went to report at the police station. She produced her clothes as PExh 1-3 and marked the lab test request, Post rape care form and P3 form as MFI 4-6. She then identified the appellant as the assailant that night.

5. On cross-examination, she stated that it was raining the night she was raped and remained adamant that it was the appellant who raped her.

6. PW2, husband to PW1, testified that on 18/10/2018 he had gone to a funeral with PW1 and one L. PW1 and L decided to go back home with a plan that he would to follow them later. While at the funeral, he heard a distress call and decided to trace his wife. He met a crowd who had apprehended the accused who was half-naked near a river while the complainant was lying on the ground nearby. He then rushed PW1 to the hospital.

7. On cross-examination, he stated that he met the appellant for the first time at the scene of the incident and took him to hospital because he had been assaulted by the mob.

8. PW3, a police officer stationed at Masai Police Post, testified that on 18/10/2019 at about 3:40AM he received a phone call from the village elder informing him that a woman had been raped. He proceeded to the scene and rearrested the suspect who had been arrested by members of the public. The appellant was naked and had been beaten by a mob thus prompting them to take him to hospital before handing him over to Kakamega Police Station. On being cross-examined, he told the court that he met the appellant for the first time that night but took him to the hospital because he had been beaten by the mob which had arrested him.

9. PW4 testified on behalf of the doctor who examined the victim and stated that the victim gave the history of having been raped and that she had mud around her private parts, she was in pains, was 5 months pregnant, was taken a high vaginal swab which revealed moderate pus cells. He produced the medical documents earlier marked, as exhibits. Upon cross-examination, he stated that he was conversant with the examining doctor’s handwriting.

10. PW5, the investigating officer testified that on 18/10/2018 the victim was brought to the station where she made a report of having been raped by someone known to her. They then escorted her to hospital and later charged the appellant. On cross-examination, she stated that the appellant raped the victim in a maize planation.

11. The evidence of PW5 marked the close of the prosecution case with the court ruling that a prima facie case had been established and the accused person was put on Defence.

12. At the defence hearing, the appellant gave an unsworn testimony, denied the charges and stated that on the fateful day he had attended his aunt’s funeral and was near a river when he was suddenly accosted by members of the public alleging that he had raped a lady.

13. In a judgment of the trial court, the appellant was convicted of the offence of rape contrary to section 3(1) as read with section 3 of the Sexual Offences Act No. 3 of 2006 and sentenced to twenty (20) years imprisonment.

14. Aggrieved with the judgment and sentence of the trial court, the appellant has lodged this appeal and attacks the judgment on the grounds that: -a.The trial magistrate erred in law and fact by convicting and sentencing the appellant on the charge of rape and not considering the evidence of the accused person and his witness.b.The trial magistrate erred in law and fact by relying on the findings based on dissimilarities.c.The trial magistrate erred in law and fact by not relying on the evidence of the doctor’s medical report.d.The trial magistrate erred in law and fact by not analyzing the basis on which the victim was raped.e.The trial magistrate erred in law by failing to analyze the evidence on record and further misdirected himself in law and fact by making illogical interferences as to the circumstances surrounding the purported offence.f.The trial magistrate erred in law and fact by casually convicting the appellant without appreciating the weight of the evidence of the defence.g.The trial magistrate erred in law and fact by failing to appreciate the material contradictions in the prosecution’s case thus taking away the benefit of doubt from the appellant.

15. The appeal has been canvassed by way of written submissions, which the court has perused and given all the due regard.

16. For the appellant it was submitted that was never positively identified since the incident happened at 2AM and the victim failed to tell the court how she was able to see the appellant herein in the darkness. He further questions how the victim’s co-wife who was an eye witness was never called to tender evidence, why the complainant’s mother whom the victim said took her to the hospital never testified and why the clothing of the appellant was never produced in court.

17. On penetration, he argues that the same was not proved and that the doctor who examined the complainant did not testify. He further claims that this is supported by the absence of spermatozoa.

18. He contends that the prosecution’s testimony was marred with contradictions in that; the P3 form indicates that the complainant’s clothing had no staining while the post rape report indicated that the clothes were soiled in mud; the police officer report indicated that the complainant was raped by a person known to her whereas the doctor indicated that the complainant was raped by an unknown person.

19. He further submits that the sentence was excessive since the appellant was 20 years old and was subjected to mob justice on mere suspicion.

20. It is the submission by the respondent that there was proved all the elements of rape in that penetration was proved by the oral evidence of the victim in which she narrated how the appellant accosted her on her way from the funeral, threw her in a water pond, removed her clothes and raped her next to the pond. They argue that from the PRC form, the examination therein confirmed that there was visible mud seen on the female genitalia and that the lab results confirmed that there were moderate epithelial cells seen. They further argue that to prove penetration one does not have to prove that there were spermatozoa or any visible physical injuries.

21. On the element of identification of the appellant as the perpetrator, the respondent submits that the appellant was not only seen by PW1 but also members of the public who arrested him after PW1 made a distress call and that PW1, PW2 and PW3 spent considerable time with the appellant before he was rearrested and taken to police custody.

22. On the last element of no consent, the respondent submits that it was PW1’s evidence that she tried to run but was overpowered by the appellant and these actions/reaction by PW1 show that she did not want to engage in sexual activity.

23. On the sentence prescribed, the respondent submits that the minimum sentence provided by law is 10 years which can be enhanced to life and looking at the aggravating factors such as the appellant being armed with a panga, accosting a pregnant woman and throwing her in a river, the sentence meted was merited and not harsh nor excessive.

Issues, Analysis and Determination 24. The court has perused the grounds of appeal as against the proceedings and judgment now under challenge together with the submissions by the parties and isolates the issues that arise for determination to be three; whether the offence of rape was proved beyond reasonable doubt against the appellant; whether the prosecution’s failed to call any key witnesses and its effect on the case and; and, whether the sentence meted on the appellant was harsh and excessive

Standard and burden of proof 25. It is the never shifting burden upon the prosecution to prove its case against the accused beyond reasonable doubt and wherever a reasonable doubt lingers in the mind of the deceased, the same is due for resolution in favour of the accused.

26. Having preferred the offense of rape against the appellant, the prosecution was duty bound to prove all the elements of the offence of rape mandated under section 3(1) of the Sexual Offences Act. The ingredients are; penetration, lack of consent of the victim and identification of the perpetrator.

27. Penetration is defined under section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organ of a person into the genital organs of another person. By dint of section 124 of the Evidence Act, the evidence of a sexual offence victim on penetration needs no corroboration and that once the court is satisfied that the victim is telling the truth, it can proceed to convict the suspect based on the sole evidence of the victim.

28. It was the evidence of the complainant that she was coming from a funeral with her co-wife when the person ahead of them scared, the co-wife fell down while the complainant tried to run away but was caught by the appellant and was sexually assaulted after the appellant removed her trousers and panty. She raised an alarm and the people at the funeral heard her distress call, responded and managed to arrest the appellant was naked but at the scene.

29. There was no break in the sequence of events in that the appellant was arrest at the scene while still in his state in which he committed the offence. There was no other person at the scene and the appellant gave no explanation why he was naked at that time of the night so proximate to the scene where the complainant had been assaulted. The complainant exhibited a proper and accurate recollection of the appellant raping her and her evidence appears to be cogent and truthful. Even though the trial could never express itself on the cogency of the evidence by the complainant, as a first appellate court, one is entitled and in deed bound to reappraise the evidence and come to own conclusion. After reexamination of the evidence at trial, the court is satisfied that the evidence of the complainant on penetration was cogent and formed a safe basis to support the conviction.

30. The appellant has argued that the absence of spermatozoa is the victim rules out penetration. That position is not the law in that rape is complete even when there is only partial penetration.it that cannot be the law that one must ejaculate and deposit spermatozoa for the offense of rape to be complete. That position was re-emphasized by the Court of Appeal in Mark Olruvi Mose-V-R(2013) eKLR where the court held: -“Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence if spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated and penetration need not be deep inside the girl’s organ.”

31. The appellant has further argued that penetration was not proved for the reason that there was the comment of the examining doctor in the Post Rape Care Form that the victim had no physical evidence of rape. He further cites contradictions on the condition of the clothing the victim wore with the P3 form capturing that the clothes had no staining whereas the Post Rape Care Form indicated that victim’s clothes were dirty, soiled in mud. The court has perused both documents to establish the alleged inconsistency, and it is noted that the doctor who filled the P3 form examined the victim on 23/10/2018, days after the incident whereas the doctor who filled the PRC form examined the victim on the date of the incident being 18/10/2018. It was also the evidence of PW4 that the victim’s vagina was dirty with mud. I find this evidence to confirm the element of penetration.

32. On the positive identification of the perpetrator, it is not in contention that the appellant was unknown to the victim before the incident and that the incident happened about 2AM. It was the testimony of PW1 that as the victim raped her she made a distress call attracting the attention of the people at the vigil who came to her rescue. The appellant has also confirmed that he was beaten and arrested by members of the public at the scene. He did not challenge the fact that he was arrested while naked. The court finds that the arrest of the appellant at the scene the complainant had just been assaulted point to the accused as the attacker. In addition, there was no lapse of time to plant any doubt of mistaken identity. The court is satisfied that that the appellant was arrested at the scene by members of the public who had no grudge against him and who were mere responding to a distress call. The testimony of PW1 that at the time of his arrest, by members of the public the appellant had no trouser tallies with, and is corroborated by the evidence of PW3 and PW4 and confirms that the appellant was naked when arrested at the scene. Therefore, there is no doubt as to the identity of the complainant’s attacker but the court is satisfied that the identification of the appellant was water-tight and clearly free from any mistake.

Paraised an alarm and the people at the funeral heard herA 33. On the element of lack of consent, it was the testimony of PW1 that she tried running but being expectant, the assailant caught up with her and threw her in a water pond. He then removed her trousers and panty and raped her next to the pond. She then r distress call. The evidence of the victim does not resonate with consensual sex. It is therefore the holding of the court that the sexual act was forced upon the complainant, and done contrary to her will and without her consent. Whether the prosecution failed to call key witnesses and its effect on the case 34. The appellant argues that the complainant’s mother and the co-wife were significant witnesses but were never called to testify as such. Without being explicit, the appellant invites the court to draw the adverse inference that had they been called their evidence would have been detrimental to the prosecution’s case. The law remains that the case belongs to the prosecution to decide which witnesses are sufficient in proving the case. In fact, failure to bring crucial witnesses portends failure of its case. that position was discussed by the Court of Appeal in Donald Majiwa Achilwa & 2 Others v Republic [2009] eKLR in which the court held;“The law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses’ evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case.”

35. This having been a sexual offence case; the most crucial evidence was that of the victim and the doctor who examines the victim. Failure by the complainant’s mother to testify does not in way rule out the fact that the victim was raped by the appellant. Even the evidence of the companion of the victim at the time of the attack was only important for purposes of corroboration, had that been mandatory.

36. Even where the court is to draw adverse inference, it can only do so if there be a basis like to say, that the excluded witness had evidence beneficial to the appellant but adverse to the prosecution. No such basis was laid, and there is no justification to detour that route.

Was the sentence harsh and excessive? 37. The circumstances in which a court may interfere with a sentence were addressed in the case of Wanjema v RepublicCriminal Appeal No. 204 of 1970 (1971) EA 493, 494 to be that: -“An appellate Court should not interfere with the discretion which a trial Court has exercised as to sentence unless it is evident that it overlooked some material factor, took into account some immaterial factor, acted on a wrong principle or the sentence is manifestly excessive in the circumstances of the case.”

38. The sentence prescribed for the offence of rape under section 3(3) of the Sexual Offences Act is a minimum of 10 years’ imprisonment which can be enhanced to life. I agree with the respondent that looking at the aggravating factors such as the appellant being armed with a panga, accosting a five-month pregnant woman and drowning her in a river, the sentence meted was commensurate and thus merited. In any event, sentence is at the discretion of the court and it takes a very strong case for an appellate court to intervene

39. For the reasons set out above, the court finds the appeal to lack merit and the same is dismissed.

DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 1ST DAY OF DECEMBER, 2023. PATRICK J O OTIENOJUDGE