[1982] KEHC 18 (KLR)
The court found that the complainant's conduct, including her willingness to remain in the appellant's house and submit to sexual intercourse without protest, undermined the credibility of her allegations. The evidence did not support the offences of stealing from the person or indecent assault as charged. The court...
Source-derived case information.
- Citation
- [1982] KEHC 18 (KLR)
- Parties
- Appellant: William Wasike Wepukhulu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 163 of 1982
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; convictions and sentences set aside
- Legal Topics
- Stealing From Person, Indecent Assault, Elements of Offence, Credibility of Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
William Wasike Wepukhulu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the evidence supported convictions for stealing from the person and indecent assault as charged.
- 2 Whether the complainant's conduct undermined the prosecution's case.
- 3 Whether the offences charged were appropriate given the facts.
Ratio Decidendi
The court found that the complainant's conduct, including her willingness to remain in the appellant's house and submit to sexual intercourse without protest, undermined the credibility of her allegations. The evidence did not support the offences of stealing from the person or indecent assault as charged. The court further noted that if the complainant's account were to be believed, the appropriate charges would have been robbery and rape, not the offences for which the appellant was convicted. In light of these findings and the State Counsel's position, the court allowed the appeal and set aside the convictions and sentences.
Court Disposition
appeal allowed; convictions and sentences set aside
Orders
- The appellant's appeal is allowed.
- The sentences imposed are set aside.
Full Case Text
Judgment text and source record
11 paragraphs
Wepukhulu v Republic
High Court, at Nakuru November 5, 1982
Mbaya J
Criminal Appeal No 163 of 1982
November 5, 1982, Mbaya J delivered the following Judgment.
William Wasike Wepukhulu was charged with two offences namely stealing from the person of another contrary to Section 279(a) of the Penal Code (Cap 63) and indecent assault of a female contrary to Section 144(1) of the same Code. On conviction he was sentenced to three years’ imprisonment for the first offence and 31/2 years’ imprisonment and ten strokes of the cane for the second offence. The prison terms were to run concurrently. He now appeals against convictions and sentences.
The complainant (PW 1) testified that on January 29, 1982 she travelled from Turbo to Central Kwanza Location in search of land to buy. At a shopping centre in Kwanza she came to meet the appellant and inquired of him where she could buy a piece of land. The appellant then invited her to his house where they were to discuss availability of land. PW 1 and appellant reached the latter’s house at 3 pm. They spoke to each other till 9 pm. Before sleeping at 9 pm the appellant said he wanted some money. Then says PW 1: “The accused became very harsh while demanding the money and started closing the door saying that if I refuse to give him some money he would kill me. I told the accused not to kill me. If it is money he wants he can take the whole money. I then removed the whole money I had, Kshs 5,500 and threw at him. He then told me that even if I have given him the money I will still be his wife till morning. He then threatened to kill me and he started having carnal knowledge of me.
On the following morning I left the house at about 8 am.”
I have quoted PW 1 at length because this case has a peculiar and suspicious setting. If PW 1 is to be believed, then the prosecution should have charged the appellant with the offence of robbery contrary to Section 296 of the Penal Code and rape contrary to Section 140 of the same Code. The offences charged were not committed as such. Where was stealing as opposed to robbery and where was indecent assault as opposed to rape?
In his defence appellant denied he committed the offences charged. In his petition of appeal, appellant states categorically that complainant was his lover for a long time. In view of the casual conduct of the complainant in feeling comfortable and submitting to sexual intercourse with appellant in his house without protest I am of considered judgment that the appellant told the truth. Learned State Counsel does not support the convictions. I think he is right.
I allow the appellant’s appeal and set aside the sentences imposed on him. He will be released forthwith unless lawfully held.