[2019] KEHC 5647 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HCCRA. NO. 46 OF 2018

WMR............................................................................APPELLANT

-VERSUS-

REPUBLIC..............................................................RESPONDENT

JUDGEMENT

INTRODUCTION

1. The Appellant was charged with offence of Attempted Rape Contrary to Section 4 of the Sexual Offences Act No. 3 of 2006.

2. Particulars being that on the 19th day of November 2016 in Makueni County intentionally and unlawfully attempted to cause his penis to penetrate the vagina of DK without her consent.

3. He pleaded not guilty and matter went into full trial.

4. The Appellant was found guilty, convicted and sentenced to serve 5 years imprisonment.

5. Being aggrieved by the above decision, the Appellant lodged appeal and set out 6 grounds of appeal in the petition namely:-

1. That the Appellant pleaded guilty to the charges.

2. That the Appellant not in dispute of the conviction but only pray the Honourable Court for leniency and more so allow his mitigation out of time having not done so within the stipulated time.

3. That the Appellant is a first offender who has never been caught on the wrong sides of the law before and therefore pry for leniency.

4. That the Appellant is deeply remorseful and repentant and promise not to repeat the mistake again.

5. That the Appellant plead that the Honourable Court review the sentence under the powers conferred to it by the Constitution of Kenya 2010 under Article 165(7) and thus substitute the same with non custodial sentence since the one imposed by the trial court was harsh and excessive.

6. That the Honourable court to issue any orders it deems fit in his circumstances and he promise to comply.

6. The parties agreed to canvass appeal via submissions but only Appellant complied.

7. The prosecution relied on the evidence on record.

APPELLATE COURT’S DUTY

8. The duty of the court of appeal has been established in a long line of cases. The position is that the court ought to subject the evidence tendered in the Trial Court to fresh scrutiny and subsequently determine whether the said court erred in both law and fact in arriving at the impugned decision.

EVIDENCE

9. PW1 DMK testified that on 19/11/2016 at about 3. 00 a.m., she heard a bang on the roof since it’s made of iron sheets. She indicated that since it was raining she did not bother. Afterwards she felt someone lying on top of her and she got shocked.

10. She screamed loudly and the neighbours came. She informed the court that the said person had a knife and wanted to stab her but she struggled with him while screaming and he ran away. She stated that she did not manage to see his face. When the neighbours came, they found he had escaped through the window.

11. In the morning she saw that the said person had left a dark blue cap in her bedroom which she identified as belonging to MR. She stated that Mutuku was like her son as his father and her husband are brothers. It was her testimony that she reported the incident at Kola Police Station and took the cap to the police. She produced it as Exh No. 1. She identified Mutuku as the appellant person before court. It was her averment that when she struggled with M she did not sustain injuries anywhere.

12. In cross examination, PW1 stated that the appellant person came to her house on 19/11/2016 at about 1. 00 a.m., She stated that the appellant person passed through the window because the said window had no grills and is not lockable.

13. She stated that the appellant person did not break the window but it used to open. She testified that the appellant person also spoke to her and she heard his voice. She denied using her husband’s cap to frame him. She denied paying anybody to frame him. PW1 indicated that her husband lives in Mombasa and only comes home in December.

14. She stated that there was a land dispute between the appellant person’s father and the appellant person’s uncle but they (herself and the appellant person) are not involved. She indicated that she removed the hat from the appellant person’s head as they struggled.

15. She stated that she had had differences with the appellant person before and he has also had differences with his parents, he had even threatened to kill them and was jailed. He had only been released on Mashujaa day. A month after his release he came to attack him. She stated that the appellant upon attacking her went into hiding but later resurfaced and was arrested.

16. PW2 BMK testified that on 19/11/2016, at about 3. 00 a.m., she was asleep and it was raining at night. She then heard noises and listened carefully and heard it was a woman screaming. She got out and heard it was his cousin’s wife D screaming. She was shouting that there was an intruder. She indicated that she decided to wake up her brother to accompany her.

17. She informed the court that her house to D is about 70 meters and other neighbours also came out. They went to D house but did not find her. They proceeded to her daughter-in-law’s house nearby and found D there. She informed them what had happened.

18. It was her testimony that they went to the house and saw footprints and D showed them that he had also escaped through the same window. She opened the door and she saw footprints to her bed and beddings all over showing the struggle. They then spotted a dark blue hat which she identified as before the court. She identified it as belonging to Mutuku whom she indicated is her cousin’s son.

19. She averred that she had seen him severally wearing it. She thereafter accompanied D to report the incident and recorded her statement afterwards. It was her testimony that a week after the incident Mutuku went into hiding and resurfaced after 6 months. She identified M as the appellant person in the dock.

20. In cross examination, PW2 stated that they saw footprints from D house to the appellant person’s house. She denied being bribed to testify.

21. PW3 BMM testified that on 19/11/2016 at about 3. 00 a.m., she was asleep in his house and was woken up by AC. She indicated that the said A was his brother’s wife and her house was near his. She told him that she had received a call from LM a neighbour who informed her that there was someone who had intruded in the L’s mother’s house. They left for the said house since it is not far.

22. On the way JM called him and told him that he had also been informed of the incident. They got to the said home at the same time. They found D at Loyce’s home. D then told them what had happened. They went with her to her house and she opened the door and they found a blue hat inside the house. He indicated that he did not know who it belonged to.

23. Since it had rained that day, they followed footsteps from the window and they went up to RWM’s place as it was muddy. He identified M as the appellant person before court. He indicated that he knew him before as his father is his cousin. PW3 informed the court that from D house to R’s house is about 10 meters. He stated that he did not enter R’s house that night.

24. In cross examination, PW3 stated that he did not find appellant person in D compound. He testified that the window is made of glass but did not have grill hence when shaken the lock opens as it was not held tight. He further indicated that footsteps led to the appellant person’s house.

25. PW3 also averred that the appellant person’s house is nearer D and he did not come out to help yet they came from far. In addition, after the incident, the appellant person went into hiding for 6 months. He denied being bribed to testify.

26. It was his testimony that the appellant person was just in jail and had been released on Mashujaa day 2016 after having been convicted from stealing from his father.

27. PW4 JM testified that on 19/11/2016 at about 3. 00 a.m., he received a phone call from P while sleeping and she told him that his neighbour D house had been intruded in. he indicated that he called BM and they met at D’s daughter-in-law namely L. They found other people already there.

28. D then told them what had happened. They went to D house to found out how the said person had gained entry. They found her window wide open. Since it had rained and it was muddy, they traced footsteps and they led to RWM’s house.

29. PW4 informed the court that the window was made of metal and glass but did not have grills. They also found a hat like Marvin. He however indicated that he could not remember its colour. He identified M as the appellant person before court who is a neighbour. PW4 indicated that the footsteps they saw were of a pair of legs of one person.

30. In cross examination, PW4 stated that the window is made of wood and has glass panes. He denied having been bribed to testify.

31. PW5 PC David Ndirangu of Kola Police Station testified that on 19/11/2016 he was at the station when he received a complaint from DK. The IO stated that on the receipt of the report, he also was handed over a hat as an exhibit. He recorded statements and visited the scene on that day and he established that indeed it had rained.

32. He also established that the appellant person had gained entry into the Complainant’s house through a wooden window in the table room. He added that since the house was made of bricks the frames of the window were weak. Hence on the appellant person shaking the window, the lock of the window let loose and the window opened.

33. He also visited the appellant person’s house and found that he is a neighbour of the Complainant because the house is 40 meters away from the Complainant’s. The IO stated that he did not find the appellant in on that day.

34. After about 6½ months the appellant person resurfaced and members of the public arrested him. After completing investigations, PW5 stated that he charged the appellant person with the offence before court. He indicated that the hat recovered was produced in court as exhibit.

35. In cross examination, PW5 stated that he visited the scene and noted the window frames were wooden and the panes were of glass. The frames were weak. He stated that the hat was identified as belonging to the appellant.

36. The prosecution closed its case. The appellant upon being placed on his defence gave an unsworn testimony and had one witness.

37. The appellant person stated that the Complainant did not see him in his house. He further stated that he did not go to her house. He contended that the Complainant is his uncle’s wife and he cannot enter into her house through the window. He informed the court that his house is near the Complainant’s house and at night he normally hears her screaming.

38. He testified that this case emanated from a family dispute due to subdividing of land. The Complainant would tell people that she would one day have him arrested and send people to kill him because he protects his father’s property. He indicated that the Complainant would pay people to do him harm.

39. DW2 RN informed the court that the appellant person is his son. He contended that according to the statements given to the court by the witnesses, they were not true because if they were he would not have stood surety for his son. He stated that the witnesses said the glass window was shaken and it opened which is unheard of.

40. In addition, he opined that was impossible where the window has a grill. He testified that the Complainant did not see the appellant person nor did her witnesses.

41. DW2 informed the court that the Complainant is his elder brother’s wife and has the habit of screaming and saying she can see people peeping into her house through the window. She indicated that she had done that severally. He informed the court that family disputes had brought about this case.

ISSUES

After going through evidence on record and submissions filed, I find he issues are; whether the identification was watertight to warrant conviction? Was appellant defense given due consideration?

ANALYSIS DETERMINATION

42. Although appellant who as un represented filed erroneous grounds claiming he pleaded guilty to the charges,he also appeared to suggest that he challenged conviction.

43. However in the submissions he challenged both conviction and sentence and set issues as;Whether or not the purported hat was a hat or a Marvin and what was it’s colour? Whether or not Appellant entered the house through the roof or not and if so where is the proof?Whether or not the footsteps were seen to Appellant’s house or not bearing in mind that it was raining and the same ought to have been washed away by rain water?Whether or not the Complainant was to be escorted for a medical checkup or not bearing in mind the same was not done as per the requirement?Whether or not the case emanates from a family dispute and or difference? ,whethr the purported hat was a hat or a Marvin and what was it’s colour?Whether or not Appellant entered the house through the roof or not and if so where is the proof?Whether or not the footsteps were seen to Appellant’s house or not bearing in mind that it was raining and the same ought to have been washed away by rain water?Whether or not the Complainant was to be escorted for a medical checkup or not bearing in mind the same was not done as per the requirement?Whether or not the case emanates from a family dispute and or difference?Whether or not the trial court errored in law and in facts in passing the said sentence upon Appellant and if the same ought to be set aside ?

44. However the court found that he was a lay man and was unrepresented thus the confusion on the grounds .The court opted to rely on both grounds and submissions to address appellant complains for the ends of justice as envisaged by Art 159 constitution of kenya.

45. On evidence,PW1 DMK who is also the Complainant in this case stated that on the 19th day of November 2016 at around 3. 00 a.m., she heard a bang on the roof which was made of iron sheets. Since it was raining she did not bother and afterwards she felt someone, lying on top of her.

46. PW1 further stated that she did not manage to see the Appellant’s face and he escaped through the window.

47. On cross examination, she said that the Appellant entered into her room at 1. 00 a.m. then changed and said it was at 3. 00 a.m.

48. Then out of the blues she said that she identified the Appellant through his voice just by saying three words in kikamba then she puts words in kiswahili “ni nini sasa”. She never told the witnesses who came thereafter nor to the police when she reported that she heard the assailant voice and then identified anybody.This was a clear case of an afterthought testimony.

49. In HIGH COURT OF KENYA AT HOMABAY CRIMINAL APPEAL NO. 35 OF 2015,obiter dictum by D.S. Majanja Judge, while citing the case of WAMUNGA –VS- REPUBLIC (1989) KLR 424 AT 426;the court held;

“it is trite law that where the only evidence against a Defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification was favorable and free from possibility of error before it can safely make it the basis of a conviction.”

50. PW3 and PW4 stated that they followed the footprints and the same ended up at the appellant person’s house which is near the Complainant’s home. PW4 contended on cross examination by the appellant person that the appellant person’s house was nearest to the Complainant’s yet he did not come out that night to help the Complainant. Hence he implied that suspicion towards the appellant person was justified.

51. How was footsteps ascertained to be that of the appellant? Was he the only person with the same foot pattern and size? What was the effect of the rains on same? Were they on a road exclusively used by the appellant only? What was the type of the soil were they printed? Were there bare feet or with shoes?

52. The trial court never considered this while passing its judgement.The trial court accepted theory advanced by the pw3 and 4 to conclude they must have been appellant foot print.

53. PW4 JM stated that he found a hat like of Marvin. PW1 and PW2 said that they saw a dark blue hat. Now who is telling the truth? Was it a dark blue hat or a blue hat or a hat like a Marvin? He further said that he could identify it if he saw it. The question is, if he saw it why couldn’t he state well what he saw and the exact colour which it bore?

54. PW5 David Ndirangu No. 54416 PC, stated that on 19th day of November 2016 the Complainant one, DK came and reported that on 12th day of November 2016 at about 3. 00 a.m., she heard some bang on the roof top and she did not bother and afterwards she heard someone lying on her.

55. The other question on his (PW5) testimony is about the identity of the hat. The officer says it was blue yet the other witnesses say it was dark blue and one says it was a Marvin? Who is telling the truth here?

56. In his defence the Appellant stated that this case emanates from a family dispute due to sub-division of land. The other defence witness backed this up and stated that the Complainant has a tendency of screaming and saying she can see people peeping into her house through the window. She has done this severally.

57. The trial court failed to appreciate the unchallenged defence of the appellant side and relied on mere suspicions and unsupportable theories by pw3 and 4 on identification based on purported footprints.

58. The fact that appellant never answered the pw1 screams as a neighbour was explained in defence but ignored by the trial court. In any event there was no legal duty for appellant to answer a neighbour screams even assuming he heard the same amidst the falling rains.

59. The absence of appellant from neighborhood was not ground to pin on him the alleged offence. Who was looking for him when and where? IO never explained that. This is the same I O who never went to visit scene even to verify the so called foot print of the appellant.

60. I may repeat what Court has stated before in MAITANYI -VS- R(1986) KLR 198:-

“There is a second line of inquiry which ought to be made and that is whether the complainant was able to give some description or identification of his or her assailants, to those who came to the complainant's aid, or to the police. In this case no inquiry of any sort was made...If a witness receives a very strong impression of the features of an assailant; the witness will usually be able to give some description.”

61. 17. The Court of Appeal in the case of WAMUNGA VS REPUBLIC (1989) KLR 426 stated as under; -

“It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favorable and free from possibility of error before it can safely make it the basis of conviction.”

62. 18. It was also held in NZARO VS REPUBLIC (1991) KAR 212 AND KIARIE VS REPUBLIC (1984) KLR 739by the Court of Appeal that evidence of identification/recognition at night must be absolutely watertight to justify conviction.

63. InR –VS- TURNBULL & OTHERS (1973) 3 ALL ER 549, which decision has been generally accepted and greatly used in our judicial system, the Court considered the factors that ought to be considered when the only evidence turns on identification by a single witness. The Court said:

64. “... The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way...? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? how long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

65. The court has taken into consideration the evidence adduced by the prosecution and the defence.

66. The High Court in Nakuru in Criminal Appeal 142 of 2005, Simon Kandenge Ondego –Vs- Republic, the court took into consideration the commentary on the The Indian Penal Code (Act XLV of 1860) by Ratanlal Ranchhoddas and Dhirajlal Keshavlal Thakore (26th Edition (Reprint 1991) in defining the essential ingredients of an attempt to commit an offence, the said authors stated at page 517 (under the Chapter dealing with attempts to commit offences) as follows;

“In every crime, there is first intention to commit it, secondly, preparation to commit it, thirdly attempt to commit it. If the third, that is, attempt is successful, then the crime is complete. If the attempt fails, the crime is not complete but the law punishes the act. An “attempt” is made punishable because every attempt, although it fails of success, must create alarm, which, of itself, is an injury, and the moral guilt of the offender is the same as if he had succeeded.”

67. The Nakuru Court thus indicated that;

“………………for the prosecution to prove the offence of attempted rape in this case, they must establish that the Appellant had the intention to rape the Complainant. They must also establish that the Appellant had put his intention into motion by making preparations to commit the offence. Finally the prosecution must establish that the Appellant made the attempt to put into effect his intention to rape the Complainant.”

68. Having considered the foregoing, I agree with trial court finding that, there is evidence to show that there was someone who entered the Complainant’s house that night while she was sleeping and laid on top of her. By lying on top of her while she was sleeping is an indication that he wanted to sexually abuse her.

69. The assailant had thus put his intention into motion. However fortunately, the Complainant felt someone on top of her and woke up. The struggle that ensued is an indication, that the assailant was hell bent to achieve his objective.

70. The prosecution witnesses corroborated Complainant’s testimony as to struggle between the Complainant and the assailant as they indicated that there were footmarks all over and beddings scattered.

71. Hence it is evident that there was an attempt to rape the Complainant.

72. Therefore the question is who the assailant was. The trial court failed to find however that there was no watertight evidence as to the person who attempted the rape on the pw1.

73. From the foregoing and taking into account the sequence of events leads me to the sole conclusion that the appellant was not proved to be the person who was the assailant. The court thus finds merit in the instant appeal and makes the following orders;

i. -The appeal is allowed, conviction is quashed, sentence set aside and the appellant is set at liberty unless otherwise lawfully held.

SIGNED, DATED AND DELIVERED THIS 31ST DAY OF MAY, 2019 IN OPEN COURT.

.................................

HON. C. KARIUKI

JUDGE