[2022] KEHC 15435 (KLR)

Wambua v Republic (Criminal Appeal E0147 of 2021) [2022] KEHC 15435 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 15435 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Appeal E0147 of 2021

GV Odunga, J

October 6, 2022

Between

Alexander Mutisya Wambua

Appellant

and

Republic

Respondent

(Being an appeal against conviction and sentence on judgment entered on 5/12/2017 before Hon. E.W. Wambugu (SPM) in Kithimani Sexual Offences Case No.11 of 2017)

Judgment

1. The appellant, Alexander Mutisya Wambua, was charged before the Principal Magistrate’s Court at Machakos in Criminal Case No 11 of 2017 with the offence of rape contrary to section 3(1)(a)(b) and 3(3) of the Sexual Offences Act. No 3 of 2006. The particulars of the offence were that the appellant, on diverse dates between 20th and 22nd February, 2017 at Yatta Sub-county, he unlawfully and intentionally caused his penis to penetrate the vagina of KK, without her consent.

2. In support of the prosecution’s case, five witnesses were called.

3. According to the Complainant, PW2, who testified through her mother, as an intermediary, due to the Complainant’s physical disabilities, she was 17 years old. On 20th February, 2017, she had gone to fetch water when the Appellant who was known to her as Mutuku, held her hand and took her to his house at Kwa Grace, close to her home removed both her clothes and his clothes and had sexual intercourse with her. It was her evidence that she did not consent to the act. The following day, she was rescued by one Janet and Nthenya together with her mother and was taken to the hoe of a neighbour known as Kaloki before being taken to her mother. Later she was taken to Matuu Hospital and to Matuu Police Station where a report was made. She identified the P3 form as well as the treatment card.

4. In cross-examination she stated that she stayed in the Appellant’s house for three days during which period the Appellant had sexual intercourse with her. She however stated that she did not scream for help and that the Appellant locked her inside the house whenever she went out. On the day of her rescue the rescuers pushed the door since it was not locked with a padlock and the Appellant was by then not in the house.

5. PW1, the Complainant’s mother testified that on 19th February, 2017 she returned back home from work at 7. 30 pm and found that the Complainant, her second born child, then aged 19 years old, had gone to fetch water. She waited for her to return but in vain. The following day, she together with her husband, PW3, decided to search for the Complainant and they sought the assistance of the neighbours in the said search. At about 10. 00 am, they found the Complainant in the house of the Appellant, a neighbour who was known to her. The Complainant was on the Appellant’s bed naked but the Appellant was not there.

6. After they had told the Complainant to dress up they searched the house and found a jerry can, slippers and leso (wrap) in the house. PW1 identified the jerry can as hers while the slippers and the leso belonged to the Complainant. According to her, the Complainant informed her that the Appellant found her fetching water and forced her to go to his house despite her protests and forced her to have sexual intercourse with him without her consent.

7. She reported the matter at Kithimani Police Station and took the Complainant to Matuu Hospital for treatment before they returned to the police station to record their statements.

8. PW3, the Complainant’s father testified that on 18th February, 201 at4pm he left the house to go to the shop and returned at 7pm. Upon his return, he found his third born child, the Complainant, not at home. He waited for her but she did not turn up. He ten reported the matter to the headman who told him to continue searching for her as he forwarded the matter to the Sub-chief. PW3 continued with the search till 23rd February, 2017 when the Complainant was found alone in the house of the Appellant, a neighbour.

9. It was his evidence that the Complainant informed him that she had gone to fetch water from the river when the Appellant found her, held her hand and forcefully took her to his house. According to PW3, the Complainant had eye sight problem at night and hearing problems. She also had problem with her arm. At the police station they were referred to the Hospital where the Complainant was examined. PW3 recorded his statement with the police.

10. In cross-examination, he stated that he entered all the houses belonging to the neighbours in search of his daughter who was found in the Appellant’s house which was locked with a latch after three days. According to him, the Appellant used to lock the complainant in the house from the outside and used to leave a basin in the house for the Complainant to relieve herself. He disclosed that he was taking care of the Complainant’s child whom he was taking to school while the Complainant was staying at home and used to fetch water. It was his evidence that due to the Complainant’s low voice, she cannot be heard when she screams.

11. According to PW3, when he found the Complainant, she had no clothes and was dressed up by the neighbours. It was his evidence that there was urine in the house. According to him, he was the first to find the Complainant and that the neighbours came later.

12. PW4, Benjamin Maingi, a clinical officer at Matuu Level Four Hospital testified that the Complainant went for examination on 1st March, 2017 under the escort of a police officer and her father. According to the report, the Complainant, who was physically challenged, had been raped between 20th and 22nd February, 2017. It was his evidence that the Complainant had a constricture of the left upper limb.

13. It was his evidence that the hymen was torn though it was not fresh. Before the examination, the Complainant had been seen earlier at County Gate Hospital due to nationwide strike by medical practitioners, where HIV test was taken and returned a negative result. However, pus cells, spermatozoa and grey blood cells were seen. The witness filled in the P3 form on the very day based on the examination and the laboratory results from County Gate Hospital. The witness also testified that the Appellant, aged 28 years old, was also examined at County Gate Hospital on allegations of rape. Upon examination, his urine was found to be normal and the HIV test was negative. He produced the P3 form for both the Complainant and the Appellant which he had signed and the laboratory results as exhibits.

14. PW5, PC Matilda Wanjiru, the Investigating Officer, testified that on 22nd February, 2017, the Appellant was taken to the Yatta Police Station by members of the public on allegations that he had raped the Complainant on 20th February, 2017 when the Complainant had gone to fetch water at a nearby stream and was forced by the Appellant to with him to his house where he locked her in his house thereafter. The Appellant ad sexual intercourse with the Complainant on 20th and 21st February, 2017 without the latter’s consent before she was rescued. According to the witness the Complainant was physically challenged and had hearing and eye sight problems and her voice was not very loud.

15. According to her, the members of the public found the Complainant in the accused’s house and took her to the station and that the Complainant confirmed that the Appellant whom she identified by his name, Alexander, was the one who locked her in his house. The witness stated that the Complainant and the Appellant were neighbours and that they had never had any sexual intercourse before the incident

16. In cross-examination, PW5 stated that on that day they were three people who went to fetch water including a young boy aged 5 years who refused to talk to the police. It was her evidence that she recovered the jerry can from the Appellant’s house which had two jerry cans but only one was identified by the Complainant’s parents. According to her the leso that was recovered in the Appellant’s house was identified by the Complainant’s parents and the neighbours.

17. At the close of the prosecution’s case, the Appellant was laced on his defence and opted to give an unsworn statement and did not call any witness. In his statement, the Appellant stated that on 22nd February, 2017, he left his house for work as he was a casual labourer. He worked until 1am when he returned for lunch. On his way, he met the Complainant’s child going to their home and he proceeded to his home. After 20 minutes, two men went to his home and asked him to take him to his house where he found PW1 who called for a motor cycle and he was taken to Yatta Police Station where the charges were preferred against him. Accordingly, he did not know about the charges facing him.

18. In her judgement the learned trial magistrate found that she observed that the Complainant had physical challenges in terms of hearing and that the questions had to be conveyed to her by shouting into her ear in order to get a response by the intermediary. According to the trial court, the Complainant could easily be manipulated or taken advantage of due to her vulnerability. Based on the case of Republic v Oyier [1985] KLR 353 cited in James Nganga Njau v Republic [2014] eKLR, the Court found from the evidence that the Complainant did not give her consent to engage in sexual intercourse and that she was unable to do so due to her incapacitation. She found that the presence of spermatozoa in the Complainant’s vagina as well as the earlier tear of her hymen coupled with the Complainant’s unequivocal statement that she never gave her consent to engage in sexual intercourse with the Appellant demonstrated that she was forced by the Appellant to have sexual intercourse by a person she identified as her neighbour at home whom she knew very well. She also spent three days in his house in which her items were found.

19. The Court therefore found that the prosecution had proved the charge and its particulars on the main charge beyond reasonable doubt and convicted him accordingly. After noting the Appellant’s mitigation that he as an orphan living with his aged grandmother as well as the victim’s impact report which revealed that the incident had negatively impacted on the Complainant leading to loss of self-confidence and reluctance in offering assistance to her parents at home, the Court opined that the Appellant took advantage of the Complainant’s physical challenge and sentenced him to 15 years’ imprisonment.

20. In this appeal, the Appellant, whose submissions are the only ones on record, set out the following grounds of appeal:1. That the learned trial magistrate erred in both law and fact on failing to observe contravention of section 107 of evidence act on where by the prosecution case was not proved behold shadow of doubt.2. That the learned trial magistrate erred in both law & fact on issues of consent where by no evidence of force, threat, assault, struggle or intimidation to support the prosecution case.3. That the learned trial magistrate erred in both law & and fact on issue of identification on whereby the appellant was to not properly & positively. Identified as the perpetrator of the act4. That the learned trial magistrate erred in both law & fact on whereby penetration & medical nexus was not established hence the medical evidence didn’t support the prosecution case.5. That the learned trial magistrate erred in both law and fact on failing observes contravening section 163 on whereby the entire evidence was incredible inconsistence and contradiction.6. That the learned trial magistrate erred in both law and fact by failing to observe that the investigation done was shoddy based on hears evidence without independent/ fairness as law required.7. That the learned trial magistrate erred in both law & fact on whereby the appellant defense was not equally considered.8. That the learned trial magistrate erred in both law and fact on issues of judgment whereby no point or points of determination hence failing into wrong decision of convicting the appellant.9. That the learned trial magistrate erred in both law and facts on issues of sentencing by imposing harsh & excessive length sentence contrary to the sentencing policy & guidelines.

21. It was submitted that the trial magistrate completely failed to observe the issue of consent and failed to find if the complainant was coerced, forced or was under any form of intimidation during the incident. In this regard reliance was placed on Peter Mukaba Oundu v Republic [2009] eKLR.

22. It was submitted that PW2 informed the Court that she was held by hand and went to the appellant’s house, who removed her clothes and that appellant did not say anything for 3 days. She did not scream; the appellant was leaving and coming later; the door was never locked; the appellant was not in the house during rescue; there was no evidence on record that there was struggle, injuries of any force was used, torn clothes, attempt to escape, attempt to raise alarm or bang the door or walls to attract members of the public for rescue and further that she was found alone naked in the house, relaxed yet the appellant was not found with her during the rescue. Based on this, it was submitted that the aspect of consent was not duly considered and the trial magistrate failed in error by failing to observe the fore stated aspects.

23. According to the Appellant, in light of the evidence that PW. 2 had sight and hearing problem and as no one witnessed the crime or saw the appellant with the victim going to the scene of crime and since the evidence was that she was found alone, it was doubtful whether she could she be able to properly and positively identify her perpetrator without another independent witness. It was noted that the Complainant described her assailant as “Mutuku” which was contrary to the evidence that the accused person and her were not known to each other clearly demonstrating the appellant was not the perpetrator of the act but the alleged “Mutuku”. It was further noted that though the Court found that the identification of the Appellant was by recognition, no ID parade was done to conclusively establish possibility of mistaken identity in the circumstances of sight disability and the fact that it’s PW 2’s evidence was that the assailant did not tell her anything. This submission was based on the holding on visual identification in John Nduati Ngura v Rep App. No 121 of 2014.

24. According to the Appellant, penetration being one of the most important ingredients in the offence must be proved and established beyond reasonable doubt and there must be a nexus between the genitalia organs of the accused and the victim. In this case, it was submitted, the medical evidence on record did not support the prosecution case since no tears or lacerations were noted which could have been consistent with any force used during the alleged sexual encounter nor were there any physical injuries of any force which could have been used. Although there was an issue of pus cells and spermatozoa and grey blood cells mentioned, no DNA test was done to conclusively ascertain link the appellant with the alleged crime. In this regard reliance was placed on Arthur Msila Manga v Republic 2016 eKLR.

25. It was submitted that the medical evidence having failed to prove any results of force nor medical nexus, physical injuries, tears or laceration the offence of rape cannot stand and reliance was placed on Dominic Kibet v Republic [2013] eKLR.

26. It was further submitted that the trial magistrate failed to observe that witnesses in this case were not credible, faithful and trustworthy due to the material contradiction, inconsistency, discrepancy among other material aspects already identified in their testimonies. The Appellant pointed out that according to P.W1, (mother) complaint was her second born while according to PW3 (father), was his third born. He also pointed out the discrepancies concerning the date when the Complainant got lost.

27. According to the Appellant, in order to avoid malice and fabrications it was wise for the prosecution to summon the neighbours to shed light to the allegations independently which creates immense doubt why they were never brought before court.

28. It was submitted that the investigation was not done in according to law and that the appellant defense was not awarded equal opportunity as the complainant’s case and reliance was placed on Pandya v Rep [1975] EA 336.

29. The Appellant submitted that there is no point or points of determinations on how the trial magistrate come up with such findings and cited the decision in John Njuguna Mburu v Rep [2019] eKLR.

30. As regards the sentence, it was contended that the trial magistrate did not take into account the sentencing policy & guidelines during the sentencing Accordingly, it was submitted that the appellant was not granted fair hearing trial in the sentencing exercise whereby the sentence was manifestly harsh and excessive since he was given 15 years imprisonment rather than the minimum 10 years imprisonment. The appellant relied on S v Muchunu and another (AR 24/11(2012) ZAKZPHC 6. It was further submitted that the time spent in remand custody was not factored during sentencing exercise in accord to section 333(2) of the CPC.

Determination 31. I have considered the material placed before the Court, the evidence for the Prosecution and the defence as well as the submissions made on their behalf in this appeal. This is a first appellate court, this court is obliged to analyse and evaluated afresh all the evidence adduced before the lower court and to draw its own conclusions while bearing in mind that it neither saw nor heard any of the witnesses. See Okeno v Republic [1972] EA 32 where the Court of Appeal set out the duties of a first appellate court as follows:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v R. (1957) EA. 570). 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 finding 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, see Peters v Sunday Post [1958] E.A 424. ”

32. Similarly, in Kiilu & another v Republic [2005]1 KLR 174, the Court of Appeal stated thus;1. 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 evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.2. 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 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.

33. It has been held that in a first appeal the appellant is entitled to expect this Court to subject the evidence on record as a whole to an exhaustive re-examination and the evidence having given allowance to the fact that this court did not see the demeanour of witnesses. Further even where the appeal turns on a question of fact, the Court has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the trial Court with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it. See Pandya v R [1957] EA. 336 and Coghlan v Cumberland (3) [1898] 1 Ch. 704.

34. However, it must be stated that there is no set format to which a re-evaluation of evidence by the first appellate court should conform. I adopt what was stated by the Supreme Court of Uganda in the case of Uganda Breweries Ltd v Uganda Railways Corporation [2002] 2 EA 634, thus:“The extent and manner in which evaluation may be done depends on the circumstances of each case and the style used by the first Appellate Court. In this regard, I shall refer to what this court said in two cases. In Sembuya v Alports Services Uganda Limited [1999] LLR 109 (SCU), Tsekooko JSC said at 11:‘I would accept Mr. Byenkya’s submission if he meant to say that the Court of Appeal did not go into details of the evidence, but that is really a question of style. There is really no set format to which the re-evaluation should conform. A first Appellate court is expected to scrutinise and make an assessment of the evidence but this does not mean that the Court of Appeal should write a judgment similar to that of the (trial).’”

35. In Odongo and another v Bonge Supreme Court Uganda Civil Appeal 10 of 1987 (UR), Odoki, JSC (as he then was) said:“While the length of the analysis may be indicative of a comprehensive evaluation of evidence, nevertheless the test of adequacy remains a question of substance.”

36. Under section 3(1) of the Sexual Offences Act:“A person commits the offence termed rape if-a.He or she intentionally and unlawfully commits an act which causes penetration with his or genital organs;b.The other person does not consent to the penetration; orc.The consent is obtained by force or by means of threats or intimidation of any kind.”

37. I agree with the position adopted by Mativo, J in Charles Ndirangu Kibue v Republic [2016] eKLR that:-“The word rape is derived from the Latin term rapio, which mean ‘to seize’. Thus rape literally means a forcible seizure. It signifies in common terminology, “as the ravishment of a woman without her consent, by force, fear, or fraud” or “the carnal knowledge of a woman by force against her will.” In other words, rape is violation with violence of the private person of a woman. A man is guilty of rape if he commits sexual intercourse with a woman either against her will or without her consent as enumerated under the Section 43 cited above. The sex must be against the will of the complainant. The word ‘will’ implies the faculty of reasoning power of mind that determines whether to do an act or not. The expression ‘against her will’ would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition. The essence of rape is the absence of consent. Consent means an intelligent, positive concurrence of the ‘will’ of the woman. The policy behind the exemption from liability in the case of consent is based on the principle that a man or a woman is the best judge of his or her own interest, and if he or she decides to suffer a harm voluntarily, he or she cannot complain of it when it comes about. Consent means an unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates willingness to participate in the specific sexual act…Consent may be either expressed or implied depending upon the nature and circumstances of the case. However, there is a difference between consent and submission. An act of helpless resignation in the face of inevitable compulsions is not consent in law.’’

38. The ingredients of the offence of rape therefore include intentional and unlawful penetration of the genital organ of one person by another, coupled with the absence of consent. In Republic v Oyier (1985) KLR pg 353, the Court of Appeal held as follows:-“1. The lack of consent is an essential element of the crime of rape. The mens rea in rape is primarily an intention and not a state of mind. The mental element is to have intercourse without consent or not caring whether the woman consented or not.

2. To prove the mental element required in rape, the prosecution had to prove that the complainant physically resisted or, if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist.

3. Where a woman yields through fear of death, or through duress, it is rape and it is no excuse that the woman consented first, if the offence was afterwards committed by force or against her will; nor is it any excuse that she consented after the fact.”

39. The first issue for determination is whether there was intentional and unlawful penetration of the genital organ of the Complainant. According to the Complainant, she had gone to the stream to fetch water when the Appellant forcefully grabbed her hand and took her to his house where he had sexual intercourse wither. It was her evidence that she never consented to the act. There was evidence that the Complainant suffered from physical disability and there was evidence that when she was eventually rescued, the neighbours were the ones who dressed her up. In those circumstances, I find that she was not in a position to resist. To further prove lack of consent, the Complainant stated that the Appellant used to close the door from the outside and had provided her with a basin to use for purposes of relieving herself. Had she consented to go with the Appellant there would have been no reason to keep her indoors. I therefore find that the Complainant did not consent to go with the Appellant to his house.

40. As regards the issue of penetration, the medical evidence was that the hymen was torn though it was not fresh. However, pus cells, spermatozoa and grey blood cells were seen. It is clear that the lack of hymen could not prove penetration since the same was not fresh. In any case there was evidence that the Complainant had a child hence in all likelihood, it was expected that her hymen would be broken. However the presence of spermatozoa and pus cells was evidence of recent sexual penetration and this corroborated the Complainant’s evidence that for the days she was in the Appellant’s house, they had sexual intercourse. In the case of George Owiti Raya v Republic [2013] eKLR it was found that:-“There was superficial penetration because there was injury on the vaginal opening as the medical evidence has indicated and further there was a whitish-yellow foul smelling discharge seen on the genitalia...it remains therefore that there can be penetration without going past the hymen membrane.”

41. In this case, both from the oral evidence and the documentary evidence it is clear that there was evidence of penetration and the said penetration was unlawful in the sense that it was not through the consent of the Complainant who stated that the sexual intercourse was not consensual. The Appellant has however raised the issue that no DNA was taken to link him with the offence. In the case of Martin Nyongesa Wanyonyi v Republic [2015] eKLR the court held that;“As such, it is evident that subjecting an accused to a medical examination to prove that he committed the offence is not a mandatory requirement of law and we find this ground to be unfounded."

42. The remaining issue is whether the said penetration was caused by the Appellant. According to the Complainant, she knew the Appellant who was a neighbour though she knew him as Mutuku. The Appellant took issue with this stating that she must have been referring to someone else. However, the Complainant identified the Appellant as the perpetrator. The mistake in the name cannot be a reason to doubt her identification of the Appellant considering her hearing disability. In this case the Complainant’s slippers, leso and the jerry can she had, were all found in the Appellant’s house. Taken holistically the evidence ruled out any possibility of mistaken identity.

43. The Appellant has raised the possibility of malice and fabrications and contended that it would have been wise for the prosecution to summon the neighbours to shed light on the allegations independently. As the issue of fabrication was not raised by the Appellant in his defence, there was no way the trial Court would have been expected to deal with it. In Ayub Muchele v The Republic [1980] KLR 44, Trevelyan and Sachdeva, JJ held that:“Just as animosity is a factor which is properly to be taken into account where required, so is lack of animosity. We see nothing wrong in an appropriate case for the court to ask “What reason had the witness to lie?”

44. In this case, there was no evidence at all on the basis upon which it could be deduced the evidence was fabricated against the Appellant.

45. As regards the discrepancies in the evidence of the witnesses, whereas I appreciate that there were minor discrepancies in the evidence of the witnesses it is my respectful view that such minor discrepancies are common. Whether or not discrepancies in the evidence of witnesses have the effect of discrediting that evidence would depend upon the nature of the discrepancies, that is to say, whether or not the discrepancies are trifling. See Law of Evidence (10th Ed) Vol. 1 at 46

46. In Republic v Ahmad Abolfathi Mohammed & another [2019] eKLR it was held that:“As regards contradictions in the prosecution’s case, other than the fact that the appellants did not point out any specific contradictions, this Court has consistently stated that because discrepancies are bound to occur in evidence; the critical question is always whether the discrepancies are minor and inconsequential or whether they are material so as to vitiate the prosecution case. (See for example Joseph Maina Mwangi v Republic, Cr, App No 73 of 1993, Kimeu v Republic (2002) 1 KAR 757 and Willis Ochieng Odero v Republic [2006] eKLR)…In this appeal, we are satisfied that there were no discrepancies of the nature that would have created doubt and vitiated the prosecution case.”

47. The same Court in David Rotich & another v R. Nakuru Court of Appeal Criminal Appeal No 75 of 1999 held that:“We notice form the record that except for one, all the statements recorded by the police were made by the witnesses in the English language. In court, it is apparent most of them gave evidence in Kipsigis, their mother tongue. It appears to us that what the police did was to record the statements in English while the witnesses might well have spoken to them in either Swahili or Kipsigis languages. We are unable to place any importance on the witnesses’ police statements. In any case, those statements were before the trial court and the Judge and the assessors must have seen them, or had them brought to their attention. They still believed the evidence of PW1 and PW2 and there is no law, as far as we are aware, that where a witnesses’ statement recorded by the police is in conflict with the evidence given by the witness in court, the evidence must of necessity be disbelieved. We have gone through the cross-examination of PW1, for instance, and we are unable to find any place at which PW1 was asked to explain the discrepancy between his police statement and his evidence in court. As we have said we do not think that the Judge and the assessors were wrong in believing the sworn testimonies of PW1 and PW2…The fact that one witness says he did not see another witness at the scene of crime does not and cannot mean the witness allegedly not seen was in fact not there. Both PW1 and PW2 were clear in their evidence that they saw these two appellants assaulting the deceased…Having looked at the whole of the recorded evidence, we are satisfied that these two appellants were correctly convicted. To be sure, there were some discrepancies in the evidence of the prosecution witnesses, but we agree with Mr Onyango Oriri, for the Republic, that the discrepancies pointed out did not go to the root of the prosecution’s case. Indeed, they were the sought of discrepancies one would expect from unsophisticated village witnesses trying their best to recall events which took place some two years ago. Like the Judge and the assessors, we are ourselves satisfied, having independently examined the recorded evidence, that the witnesses for the Republic were basically honest and their evidence proved the charge against the appellants beyond reasonable doubt.”

48. As was stated in John Cancio De SA v V N Amin Civil Appeal No 27 of 1933 [1934] 1 EACA 13:“Probably every judge has had occasion at some time or other to regard discrepancies as showing veracity, and to regard uniformity as showing fabrication, but it depends upon the nature of the discrepancies and the uniformity. If two people allege that they made a journey together from Kampala to Nairobi and they differ on such details as the time the train stopped at Eldoret, what they had for lunch and dinner, and whether it rained on the journey and where, it would be more reasonable to argue a difference in memory than that the journey was never undertaken. But if one says they made the whole of the journey by rail, and the other says they went to Entebbe by car and thence by air to Nairobi, it would be more reasonable to argue that the journey never took place than that one or both suffered from a defective memory.”

49. This was the position in Willis Ochieng Odero v Republic [2006] eKLR, where the Court of Appeal held:“As for the contradictions in the prosecution evidence it may be true that such contradictions, particularly with regard to the date indicated on the P3 form as the date of the offence, is different. But that per se is not a ground for quashing the conviction in view of the provisions of section 382 of the Criminal Procedure Code.”

50. Therefore, each case must be considered on its own particular circumstances. There are cases where the inconsistency is so minor that clearly it will be of little effect and certainly does not necessarily mean that the witness is lying or that his testimony cannot be relied on. The judge must take all the evidence and all the circumstances of the case into account in deciding whether to accept a witness’s evidence or any part of his testimony. (Nyakisia v R. E. A. C. A. Crim. App. 35-D-71; -/5/71; Duffus P., Spry v P. & Lutta J. A., in the East African Court of Appeal).

51. I have myself subjected the evidence adduced to fresh scrutiny and though it is true that there were inconsistencies in the evidence of some of the witnesses, I am unable to find that the same were material enough to warrant interference with the decision on that score.

52. It was submitted that the appellant’s defence was not awarded equal opportunity as the complainant’s case. This contention is not entirely without merit. A perusal of the judgement of the trial court reveals that the Appellant’s defence was not mentioned at all in the judgement. I agree with the case of Philip Muiruri Ndaruga v Republic [2016] eKLR where it was stated as follows:“The proper approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and having done so, to decide whether the balance weigh so heavily in favour of the state as to exclude any reasonable doubt about the accused’s guilt.”

53. Similarly in Lukas Okinyi Soki v Republic Kisumu Criminal Appeal No 26 of 2004 Omolo, Githinji, JJA & Onyango Otieno, Ag.JA).“This is second appeal and thus, we are bound to consider the appeal on matters of law only. We reiterate and emphasise this Court’s decision in the case of Gabriel Kamau Njoroge v Republic (1982-88) 1 KAR 134 where it was held, inter alia, as follows:‘It is the duty of the first appellate court to remember that parties are entitled to demand of the court of first appeal a decision on both questions of fact and of law, and the court tis required to weigh conflicting evidence and draw its own inference and conclusions, bearing in mind always that it has neither seen nor heard the witness and make due allowance for this’.It is with the above in mind that we now consider this appeal. The appellant, as we have stated raised mainly two defences. The first was one of alibi and the second was that there were grudges between the appellant’s father and the complainant. Our understanding of the appellant’s defence is that he could not be properly identified as he was not at the scene of the robbery and the complainant’s evidence together with that of his wife and his grandson were all fabricated stories against him. On the other hand, the complainant and his wife were certain in their evidence that the appellant was one of the attackers. These were conflicting versions and demanded that the trial court had to carefully consider, analyse and evaluate the evidence that was before him both by the prosecution’s witnesses and the appellant. He had to consider whether the circumstances for identification were favourable or not. He had to consider whether the defence of alibi was well founded and whether it was properly displaced by the prosecution case. The consideration had to clearly be borne by the record. Equally the first appellate court, as was stated in the case of Gabriel Kamau Njoroge v Republic (supra) had a duty to carefully analyse and weigh conflicting evidence and draw its own conclusion on the same, bearing in mind that it had not seen or heard the witnesses… The learned trial Magistrate did not consider this defence and never made any finding on it.”

54. In Charles Wanyonyi & others v Republic Kisumu Criminal Appeal No 134 of 2004 (Omolo, O’kubasu & Onyango Otieno, JJA).“Something needs to be said about the contents of the judgement of the learned trial Judge. It is to be observed that he carefully set out the evidence adduced by the prosecution and the defence of each appellant. Having done so it was expected that he would proceed to analyse and resolve the issues involved, giving reasons for his decision. This appears to have been omitted as the learned Judge merely relied on the evidence of PW1 and suddenly came to the conclusion that the appellants were guilty. We are not introducing any new issue here since this is what is provided for by section 169(1) of the Criminal Procedure Code (Cap. 75 Laws of Kenya).”

55. My reading of the judgement leads me to the conclusion that the learned trial magistrate did not strictly comply with section 169(1) of the Criminal Procedure Code. However, this being the first appellate court, that non-compliance is not necessarily fatal since this Court is expected to subject the evidence on record to a revaluation taking into account that it is not the trial court and therefore had no benefit of seeing and hearing the witnesses testify. In this case, the evidence adduced by the appellant was a mere denial. He did not, for example, attempt to explain how the items that were recovered in his house found themselves there yet these corroborated the Complainant’s evidence. As was held by the Court of Appeal in Isaac Njogu Gichiri v Republic [2010] eKLR:“With regard to failure by the superior court to give due consideration to the appellant’s defence we wish to state that his defence was a mere denial of the charge and the sequence of events of his arrest. The trial court stated after narrating it thus: “I find that the defence of the 5th accused is not true.” We would not have expected the trial Magistrate to say more because the appellant said nothing about the events of 8th October, 1998. On this, the superior court stated: “The trial Magistrate was also right in rejecting the defence of the appellant in the circumstances.” We agree with this confirmation.”

56. The Court of Appeal for East Africa in Rafaeri Munya alias Rafaeri Kibuka v Reginam [1953] 20 EACA 226 observed that:“The force of suspicious circumstances is augmented where the person accused attempts no explanation of facts which he may reasonably be expected to be able and interested to explain; false, incredible or contradictory statements given by way of explanation, if disapproved or disbelieved become of substantive inculpatory effect.

57. The principle applicable was well explained in the court of appeal case of Ernest Abanga Alias Onyango v Republic CA No32 of 1990 as follows:“In Rafaeri Munya alias Rafaeri Kibuka v Reginam (1953) 20 EACA 226, the appellant there was convicted of murder and the case against him was mainly based on circumstantial Evidence. In his sworn evidence at the trial, he made some denials which were obviously false. It was held that: The force of suspicious circumstances is augmented where the person accused attempts no explanation of facts which he may reasonably be expected to be able and interested to explain; false, incredible or contradictory statements given by way of explanation, if disapproved or disbelieved become of substantive inculpatory effect”. This case in our view does not in any way go against the basic legal principle that the burden of proving a criminal charge beyond doubt is solely and squarely upon the prosecution. But it`s a basic holding, namely that when an accused person tells an obvious and deliberate lie which is disproved or disbelieved, then such a lie is capable of providing corroboration to other independent availably”.

58. As regards the sentence, Section 3(3) of the Sexual Offences Act provides that: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.

59. It is therefore clear that the sentence prescribed for the offences in question is between ten years and life imprisonment. In other words, the minimum sentence is ten years which can be enhanced to life imprisonment. In this case the appellant was sentenced to neither the minimum nor the maximum. However, the State informed the court that it had no previous criminal records of the Appellant which meant that the Appellant ought to have been treated as a first offender. In my view where the law prescribes the minimum and maximum sentences, in sentencing an accused to a sentence other than the minimum sentence the Court ought to give reasons for that since an accused is entitled to the benefit of a lesser sentence. To simply state that the gravity of the offence was considered without indicating what made the offence grave, in my view, will not do.

60. In the premises having considered the circumstances of this case, I hereby allow the appeal in so far as the sentence is concerned and substitute therefor a sentence of 10 years imprisonment. Section 333(2) of the Criminal Procedure Code provides as hereunder:(1)A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death.(2)Subject to the provisions of section 38 of the Penal Code every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

61. It is therefore clear that it is mandatory that the period which an accused has been held in custody prior to being sentenced must be taken into account in meting out the sentence. While the court may in its discretion decide that the sentence shall run from the date of sentencing or conviction, it is my view that in departing from the above provisions, the court is obliged to give reasons for doing so. However, where the sentence does not indicate the date from which it ought to run the presumption must be in favour of the accused that the same will be computed inclusive of the period spent in custody.

62. I associate myself with the decision in Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR where the Court of Appeal held that:“The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012. ” [Emphasis mine].

63. The same Court in Bethwel Wilson Kibor v Republic [2009] eKLR expressed itself as follows:“By proviso to section 333(2) of Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody. Ombija, J. who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody. The appellant told us that as at 22nd September, 2009 he had been in custody for ten years and one month. We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.”

64. According to The Judiciary Sentencing Policy Guidelines:The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.

65. In this case there is no evidence that the learned trial magistrate took into account the duration that the Appellant was in custody. Therefore, I direct that his sentence will run from 22nd May, 2017 when the Appellant was arrested.

66. It is so ordered.

G V ODUNGAJUDGEJUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 6THDAY OF OCTOBER, 2022M W MUIGAIJUDGEDelivered the presence of: