[2022] KEHC 10212 (KLR)

Willy v Republic (Criminal Appeal 17B of 2020) [2022] KEHC 10212 (KLR) (6 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10212 (KLR)

Republic of Kenya

In the High Court at Kitui

Criminal Appeal 17B of 2020

RK Limo, J

July 6, 2022

Between

Alex Musee Willy

Appellant

and

Republic

Respondent

Judgment

1. The appellant herein, Musee Willy Alex was charged with the offence of rape Contrary to Section 3(1) (a) (3) of the Sexual Offence Act No. 3 of 2006. The particulars as per the charge sheet are that on 11th December 2018 at about 1300 hours at [Particulars Withheld] location, Katulani Sub-County, within Kitui, he intentionally and unlawfully caused his penis to penetrate by force the vagina of RS a woman age 22 years.

2. The appellant denied committing the offence and the matter proceeded to full trial where the prosecution presented 3 witnesses. The appellant testified on oath and insisted that he was innocent. The trial court however, upon evaluation of evidence found him guilty and convicted him sentencing him to serve 30 years’ imprisonment.

3. He felt aggrieved and filed this appeal but before I consider it, I will set down the brief summary of the evidence tendered at the trial court.

4. RS, (PW1) the complainant informed the court that she was on her way home on the material day at around 1. 00pm when she met the Appellant and that he grabbed her, placed her on his shoulders and took her into a bush where he raped her repeatedly. She stated that she was six months pregnant at the time. That after the assault, she went to Mutunga’s home and reported to him what had transpired. The incident was reported at the chief’s office where they were advised to go to hospital for medical attention. After the hospital she reported the incident at Itoleka Police Station. On cross examination, she told the court that she did not know the Appellant but knew where he worked/grazed some cattle. She therefore took the police to where the Appellant grazed animals pointed him as a short person and the arrest was made.

5. AM (PW2) told the court that PW1 left his home on the material but returned after 45 minutes and PW1 reported that she had been raped by a neighbour’s boy who grazed cattle near his home but she did not know his name. He stated that he observed that PW1 was covered in dirt and had bruises on her elbow. He added that he took PW1 to the chief’s office to report the incident and thereafter to hospital where she was examined. That two days later, the complainant and her husband asked the witness to take them to where the Appellant grazed cows and when the Appellant saw them, he hid in a bush. That when the Appellant remerged, he told them that the matter had been settled between him and the Complainant but he was arrested by a police officer who was also at the scene. The witness stated that they were able to identify the Appellant from his hair cut which was distinct to him. The witness stated the appellant had a box haircut which was distinct and conspicuous in the village.

6. Thomas Muasya Kituka (PW3), a County Clinical Officer working at Kitui County Referral Hospital testified that he personally examined the victim and filed the P3 Form which he tendered as P Ex 1. He testified that the victim was 6 months pregnant at the time. He testified that the physical examination showed no laceration or discharge but a vaginal swab when tested in a lab indicated presence of spermatozoa and positive growth suggesting infection and puss cells. The medical officer also tendered PRC Form as P Ex 2 and treatment notes from Kitui County Hospital as Ex 3. He also tendered exhibits 4(a) (b) and (c) respectively which indicated that the victim was 6 months pregnant at the time.

7. When placed on his defence, the appellant denied committing the offence stating that he was set up by AM (PW2) whom he had previously differed with. He claimed that he was arrested but never notified why he was being arrested.

8. The trial court evaluated the evidence tendered and found that the prosecution had proved its case beyond doubt and convicted the appellant and sentenced him to serve 30 years in jail.

9. As observed above, the appellant was dissatisfied with both the conviction and sentence. He then lodged this appeal and raised the following grounds namely;i.That the trial magistrate erred by what he calls stage managing the case.ii.That the learned trial magistrate also erred in law by not considering that this case was not proved beyond reasonable doubts due that the case has no investigations officer did not make a follow-up on the hearsay evidences from PW1 and PW2. iii.That the learned magistrate erred in law and facts when she convicted the accused person with the evidences of PW1 and PW2 not understanding that there was a differences between the accused and PW2 who gave his evidence as PW1’s cousiniv.That the honourable trial magistrate erred in law and facts when she accepted the evidence of PW3 examination officer (doctor) not understanding that accused was not examined following the said rapev.That the learned trial magistrate fell in both law and facts while convicting the Appellant without giving his defence of alibi due regard and considering that the whole prosecution evidences were not flowing and also unbelievable one to sustain a conviction.

10. In his submissions filed on 22nd December 2021, the Appellant takes issue with his identification as the perpetrator as he states that the complainant stated that she did not know him. He submits that the police ought to have conducted an identification parade.

11. He also submits that penetration and age of the victim were not proved beyond reasonable doubt.

12. He also has issues with the witnesses stating that the investigating officer ought to have been called.

13. The State through Mr. Okemwa for Respondent conceded to this appeal contending that the evidence tendered did not link the appellant with the offence and that the conviction was unsafe.

14. This court has considered this appeal and the grounds raised. As the first appellate court, this court has the duty to re-evaluate the trial while at the same time appreciating that the Trial Court is the one that had the opportunity actually of hearing the testimonies and seeing the evidence. This duty was succinctly stated by the Court of Appeal in Okeno –Vs– Republic (1972) EA 32 as follows: -“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellant’s court own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”

15. The accused was charged with rape. Section 3(1) of the Sexual Offences Act states that a person commits the offence of rape if;“He or she intentionally and unlawfully commits an act which causes penetration with his or genital organs;a.The other person does not consent to the penetration; orb.The consent is obtained by force or by means of threats or intimidation of any kind.”

16. The prosecution was therefore required to establish penetration, absence of consent, and that the Appellant was the perpetrator of the act.

17. On the question of penetration, the P3 tendered as P Ex1 indicated that there was rape though the vaginal examination indicated that labia majora and minora had no lacerations or discharge. The medic indicated that there was presence of spermatozoa and puss cells.

18. In rape, the general rule is that even without considering the presence or otherwise of medical evidence, an offence of this nature can be proved by oral evidence of a victim of rape or circumstantial evidence. This position is fortified by the holding of the Court of Appeal in Martin Nyongesa Wanyonyi vs. Republic 2015 eKLR citing Kassim Ali vs Republic Criminal Appeal No. 84 of 2005 (Mombasa) where the appellate court stated that:“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence.”

19. This court finds that the evidence of the victim that she was raped is not corroborated by the medical evidence of PW3 it is only the witness account of PW2 who saw the Complainant covered in dirt and bruises on the elbow. PW2 stated that she had parted ways with the Complainant, a neighbour only 45 minutes prior to the incident and that he saw the condition of the Complainant and decided to escort her to a Chief’s Office at Kathukini.

20. This court has noted from the medical report that the medic noted no lacerations or any signs of lacerations or any other physical injury which in my view is material because for the offence of rape to be sustained, the prosecution must prove the element of force, intimidation, threats or any other undue influence by the perpetrator to engage in sex.

21. The provision of Section 42 of Sexual Offence Act describes consent as;“For the purpose of this Act, a person consents if he or she agrees by choice and has freedom and capacity to make that choice.’’

22. It is also important to get to the bottom of the elements of intent and an unlawful act of the rape itself to find out if the evidence tendered at the trial brought out the said elements to the required standard.

23. Section 43(1) of the Sexual Offence Act provides as follows: -“(1)An act is intentional and unlawful if it is committed—a)in any coercive circumstance;b)under false pretenses or by fraudulent means; orc)in respect of a person who is incapable of appreciating the nature of an act which causes the offence.(2)The coercive circumstances, referred to in subsection (1)(a) include any circumstances where there is—(a)use of force against the complainant or another person or against the property of the complainant or that of any other person;(b)threat of harm against the complainant or another person or against the property of the complainant or that of any other person; or….(c)abuse of power or authority to the extent that the person in respect of whom an act is committed is inhibited from indicating his or her resistance to such an act, or his or her unwillingness to participate in such an act.’’

24. In Republic versus Oyier [1985] eKLR, the Court of Appeal held as follows: -“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.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.”

25. The Complainant stated that she was caught by the appellant in a secluded place and carried shoulder high to a bush but she did not state what she did to resist the act. Though she says that the appellant pulled his shirt and covered her moth, there was no explanation given to show that she resisted by either shouting for help as she was being carried or even kicked him. I have given due consideration to her condition at the time. She was 6 months pregnant as confirmed by the medic who examined her but I have noted the inconsistency between the evidence of PW2 who saw dirt on her clothes and bruised elbows and the medic (PW3) who found no physical injury on the elbows when she examined her. The state of her clothing as per the P3 Form tendered, does not also indicate that it was dirty or there were signs of dust or dirt.

26. As I have observed, the key ingredient of rape is not just penetration as indicated by the spermatozoa (reflected on the P3) but lack of consent. A charge of rape can only be sustained if that element is proved beyond doubt. The prosecution should show that either there was no consent in which case, show that there was some resistance or that consent was obtained through threats, coercion or by any other means well stipulated under Section 43 (1) of the Sexual Offence Act. That fact should come out clearly from the evidence.

27. The trial court in my view erred by addressing its mind only to the question of penetration as though it was dealing with a defilement case. The two offences are distinct in terms of the different requirement in each case. In defilement, the necessary ingredients as per Section 8(1) and (2) are penetration, age of the victim and positive identification of the perpetrator while in rape such as in this instance, the necessary ingredients as per Section 3(1) are: -i.Intentional and unlawful penetration.ii.Lack of consentIf consent is obtained by force or intimidation.’’

28. I am satisfied that the identification of the appellant was positive though the investigating officer could have done better by conducting an Identification Parade, where a victim does not know the perpetrator by name and only know him physically the best course to follow is to conduct an Identification Parade in order for positive identification to be established.In the end, this court finds that this appeal is merited because the prosecution did not fully discharge the burden of proof. The key element of lack of consent was not established beyond doubt though penetration was established. I therefore, agree with the Respondent that it was not safe for the trial court to render a conviction based on the evidence tendered. The prosecution conceded to this appeal but they ought to have done more during trial to ensure that their case was sustainable but failed to do so. In the premises, this court allows this appeal. The conviction is quashed and the sentence is set aside. The appellant shall be set free forthwith unless lawfully held.

DATED, SIGNED AND DELIVERED AT KITUI THIS 6TH DAY OF JULY, 2022. HON. JUSTICE R. K. LIMOJUDGE