[2022] KEHC 13641 (KLR)

Wanjiru v Republic (Criminal Appeal 3 of 2020) [2022] KEHC 13641 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13641 (KLR)

Republic of Kenya

In the High Court at Nyeri

Criminal Appeal 3 of 2020

FN Muchemi, J

October 13, 2022

Between

Joseph Muriuki Wanjiru

Appellant

and

Republic

Respondent

(Being an Appeal against the conviction and sentence in the Chief Magistrate Court in Nyeri by Honourable N. Kariuki (SRM), in Criminal Sexual Offence Case No. 28 of 2019 on 6th February 2020)

Judgment

Brief Facts 1. Before the Senior Resident Magistrate Nyeri the appellant was charged with the offences of rape and defilement contrary to Section 3 and 8(1) as read with 8(2) of the Sexual Offences Act No. 3 of 2006. He was convicted of both rape and defilement in respect of two complainants being a mother and her child of tender years.

2. In Count I, the particulars of the charge were that during the night of 23rd and 24th June 2019 at [Particulars Withheld] village in Nyeri District, the appellant unlawfully and intentionally caused his penis to penetrate the vagina of JN without her consent. He was found guilty of the offence and sentenced to serve twenty (20) years imprisonment.

3. In Count II the particulars were that during the night of 23rd June 2019 at [Particulars Withheld] village in Nyeri District, the appellant unlawfully and intentionally caused his penis to penetrate the vagina of RWG a child of 2 ½ years. Upon conviction of the offence the appellant was sentenced to life imprisonment.

4. Being aggrieved by the entire judgement, the appellant lodged the instant appeal citing several grounds of appeal summarised as follows:-a.That the learned trial magistrate erred in law and in passing the judgment convicting the appellant when the prosecution had not proved its case by discharging the required burden of proof;b.That the learned trial magistrate erred in law and in fact in failing to appreciate that the prosecution’s case was filled with contradictions and inconsistencies;c.That the learned trial magistrate erred in fact in meting out two sentences to run consecutively contrary to Section 333(2) of the Criminal Procedure Code.

5. By consent of the parties, the appeal was disposed of through written submissions.

The Appellant’s Submissions 6. The appellant submitted that the prosecution’s case was filled with contradictions and inconsistencies. He said there was contradiction between the time PW1 said she was raped together with her infant and the time PW2 alleged that she found PW1, the appellant and the clan elder. The appellant states that PW1 testified that she and her baby were sexually assaulted at 2. 00 am and then the rapist fled away. PW1 then followed the rapist and after knowing his residence she went back to her place and slept till morning. She further testified that she did not talk to anyone nor did she awaken any of her neighbours. PW2 testified that she heard the appellant, PW1 and a village elder walk and talk behind her house and when she asked what was going on, the clan elder told her that PW1 had been raped by the appellant. The appellant further submitted that the distance between his house and PW1’s is a five minutes ‘walk whereas the distance between PW1’s house and PW2’s house is also a similar distance. The appellant thus concludes that PW1 and PW2 knew each other and states that the clan elder framed him.

7. The appellant further submitted that PW1 is an unreliable witness because she has filed a similar case of rape against him namely Appeal No. 5 of 2021. Moreover, the appellant further submitted that the prosecution evidence did not reach the required threshold as there was no DNA test tying him to the crime.

8. The appellant further contended that the ingredient of identification was not proven as PW1 identified him on the dock which evidence he asks the court to omit.

Issues for determination 9. The main issues for determination are as follows:-a.Whether the prosecution proved its case beyond any reasonable doubt;b.Whether the sentence imposed on the appellant is harsh and excessive.

The Law 10. This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the Court of Appeal stated:-“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.

11. Similarly in the case of Okeno vs Republic [1972] EA 32 where the Court of Appeal set out the duties of the 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 vs 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 vs 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 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 vs Sunday Post [1958]EA 424. ” This was also set out in the case of Kiilu & Another vs Republic [2005] KLR 174.

12. In order to determine whether the prosecution proved its case beyond a reasonable doubt, it is important to analyse the evidence with a view of establishing whether there was conclusive evidence of all the ingredients of rape and defilement. Secondly, the question whether the prosecution evidence was riddled with material contradictions ought to be answered.

13. Section 3(1) of the Sexual Offences Act, 2006 sets out the ingredients of rape which the prosecution must prove:-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; orc.The consent is obtained by force or by means of threats or intimidation of any kind.

14. PW1 testified that she is 23 years old and that on the fateful night at about 2. 00 am she was asleep when someone knocked on the door and forced it open. An unknown man then entered her house and that she could see his face from the light of the torch she was holding and from the street light that illuminated her house through the window. PW1 further testified that the appellant said he wanted to sleep with her in exchange for money and that when she refused the man grabbed her and pushed her to the floor. He removed her underwear and inserted his penis into her vagina. PW1 further testified that she tried to scream but the appellant grabbed her throat and threatened to harm her using the panga he was holding.

15. Dr. Wahome Muriuki testified as PW4 and produced the Post Rape Care Form and P3 Form in evidence. He testified that he examined PW1 and found that her hymen was broken by a person known to her.

16. The evidence is that PW1 saw the appellant’s face using a torch and later with help of the street light that lighted the room through her window. PW1 further testified that she followed the appellant after he left her house so that she could establish where he lived. She followed him up to his residence to where she later took the village elder the following day. PW1 explained she had seen the appellant with help of her torch and security light that lighted the room. It is therefore not correct as alleged that PW1 identified the appellant only in court. PW1 personally led to the arrest of the appellant by members of public. In my view, the conditions for identification were conducive leading to positive identification.

17. The prosecution tendered evidence on lack of consent on part of the complainant. I am of the considered view that the offence of rape was proved beyond reasonable doubt.

18. On Count II, the appellant was charged and convicted of the offence of defilement. Relying on the case of Charles Wamukoya Karani vs Republic, Criminal Appeal No. 72 of 2013 where it was stated that:- “The critical ingredients forming the offence of defilement are proof of age of the complainant, proof of penetration and positive identification of the assailant.”

19. PW1 testified that the minor was 2½ years old during the incident having been born on 24th October 2016. She produced a birth notification from Kenyatta National Hospital that showed that the minor was born in 2016. I have perused the court record and I am satisfied that the prosecution proved the age of the minor.

20. Section 2(1) of the Sexual Offences Act defines penetration as:“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”

21. PW1 testified that the victim of the defilement was with her in their home when the appellant forced himself into her house in the wee hours of the night. She further testified that as the appellant raped her, the minor was asleep on the bed. After that the appellant took the baby from the bed, placed her next to PW1, removed the baby’s trousers and placed his penis into the baby’s vagina. PW1 testified that she tried to scream but the appellant grabbed her throat and threatened her. She again attempted to grab the baby from the appellant as he continued defiling the minor but he took the panga and threatened her with it a second time. The appellant then defiled the victim for about 2 minutes and that the baby subsequently bled from her private parts.

22. PW4 examined the minor and found that she had fush spermatozoa and her hymen had been freshly broken. The witness testified that the probable cause of injury was penetration by a male organ namely penis. He concluded that she was defiled and noted that the degree of injury was harm. He further testified that she bled a lot from her private parts and had pus oozing from therein. The P3 form and the post-rape care form (PRC) was tendered in evidence.

23. For a charge of defilement proof of penetration is key derived from the complainant’s testimony that may be corroborated by the medical evidence. The minor in this case was aged 2½ years at the time of the offence and was therefore not competent witness. The evidence of the victim’s mother was corroborated by the medical evidence of PW4. The inevitable conclusion from the analysis of the evidence is that there was ample evidence to prove that penetration occurred. I accordingly find that the prosecution did prove penetration.

24. The appellant has complained that the medical evidence did not implicate him and it was necessary for a DNA test to be done. As the Court of Appeal noted in Geoffrey Kioji vs Republic Nyeri Criminal Appeal No. 270 of 2010 (UR):-Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person. Indeed, under the proviso to Section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.

25. It is trite law that DNA evidence is necessary in a case of rape or defilement.

26. According to PW1, the incidents occurred at around 2. 00am when the appellant forced his way into her house. PW4 the neighbour of PW1 testified that she heard screams from the house of PW1 at around 2. 00 am. I find no contradiction in terms of the time of the incident.

27. From the evidence of PW1 and PW4, it is clear that the accused did not only go to the house of PW1 on 25/06/2019. He had gone there before and raped her and her baby but PW1 did not follow him to establish where he lives that first time. This can be confirmed from the evidence of PW1 and PW5. It was on the 2nd instance that she decided to follow him to know where he lived. As such, the day the village elder got involved was after Pw1 had known the location of the residence of the appellant. As such there was no contradiction regarding the evidence of PW1 and PW5.

28. I am of the considered view that the prosecution have proved all the ingredients of the offences of rape and defilement respectively. I find that the conviction in both count 1 and Count II was based on cogent evidence.

Whether the sentence was harsh and excessive. 29. It is noted that the appellant does not per se contest the sentence but argues that the trial magistrate erred in meting out two sentences to run consecutively contrary to Section 333(2) of the Criminal Procedure Code. From the perusal of Section 333(2) of the Criminal Procedure Code, I believe the appellant is misguided on the provisions of the law. The court record shows that in count 1 the appellant was sentenced to 20 years imprisonment in respect of the offence of rape whereas count 2, he was sentenced to life imprisonment. The trial magistrate was clear that the sentence of 20 years will be held in abeyance of life imprisonment sentence. As such, the sentences were not ordered to run consecutively as the appellant believes.

30. Section 3(3) of the Sexual Offences Act No. 3 of 2006 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 life imprisonment.

31. Section 8(2) of the Sexual Offences Act No. 3 of 2006 provides that:-A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.

32. The appellant was sentenced to 2 years imprisonment which was an enhanced sentence under Section 3 of the Act.

33. In Bernard Kimani Gacheru vs Republic [2002] eKLR and Ahamad Abolfathi Mohammed & Another vs Republic [2018] eKLR the courts held that as a general rule sentence is a matter that rests in the discretion of the trial court and it must depend on the facts of each case. On appeal, the appellate court will not easily interfere with the sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.

34. At the time of the offence, PW1 was 8 months pregnant when the appellant raped her and the minor was aged 2½ years, a child of tender years. Although the appellant was a first time offender, the trial court did not lose sight of the seriousness of the offences and the trauma that goes with the offence of defilement which is detrimental to the child’s mental and physical health. I am of the considered opinion that the sentences were not harsh or excessive but is within the law and commensurate with the offence.

35. In regard to the sentences imposed in both Count I and II, I find no error or misdirection on part of the magistrate. The order to hold the sentence of 20 years in obeyance to the sentence of life imprisonment was correct in my considered view.

36. In conclusion, I find that the conviction was based on cogent evidence in that the case against the appellant was proved beyond reasonable doubt.

37. Consequently, I find no merit in the appeal and dismiss it accordingly.

38. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT NYERI THIS 13TH DAY OF OCTOBER, 2022. F. MUCHEMIJUDGEJudgement delivered through video link this 13th day of October, 2022.