Aura v Director of Public Prosecutions [2022] KEHC 13713 (KLR)

Aura v Director of Public Prosecutions (Criminal Appeal 2 of 2020) [2022] KEHC 13713 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13713 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal 2 of 2020

WM Musyoka, J

October 7, 2022

Between

Peter Aura

Appellant

and

Director of Public Prosecutions

Respondent

(Being an appeal from the judgment of Hon. F. Makoyo, Senior Resident Magistrate, in Butere SRMCSO No. 24 of 2018, delivered on 15th January 2020)

Judgment

1. This is one of the matters that I took over from F Amin J, on June 16, 2022. It was due for ruling on May 12, 2022.

2. It is not quite clear to me why it was due for ruling. The appellant had filed an appeal against a sentence on a rape charge. When the matter was mentioned on May 27, 2021, the appellant informed F Amin J that he was seeking review of sentence. The court then called for a probationer’s report, for re-sentencing purposes. The court also directed that the appellant be enrolled in the schooling facility at the prison. The re-sentencing report by the probation service has not been filed.

3. I shall take it that the appellant would like the court to consider the appeal only as it relates to sentence. I shall not prepare a ruling but a judgment on the appeal, but limited to sentence.

4. The complainant was a widow, with a 13-year-old son. The appellant cunningly found his way into her house, pretending that he was an employee of the area Member of Parliament, collecting or taking details or particulars of widows in the area. Once he got there, escorted by a woman familiar with the complainant, he lingered around until dinner time, when he outstayed his welcome, after eating the widow’s food, and was asked to leave. He showed his true colours, and his real intentions. He refused to leave. The complainant asked her son to go out and get help. The appellant grabbed the boy, and tied him up, and told him sit at a corner. He forced the complainant to wash his clothes. He also got her to cook eggs for him. He then raped her throughout the night, at her sitting room, with her son, still tied up, watching. When the appellant was leaving the scene at 5. 30 AM, he demanded for money, and was given a chicken.

5. The appellant took advantage of the vulnerability of a widow. He ate her food. Used her labour. Threatened her and her son. Demanded money from her with menaces. He walked away with her chicken. He dishonoured her in the presence of her teenage son. The complainant and her son must have had a traumatising night. The appellant was an unwelcome intruder into their lives, posing as a charitable person, visiting them for a benevolent mission. He posed an unknown danger to them. Vulnerable widows require protection, not exploitation. The law exists to protect them from unsavoury characters like the appellant. A deterrent sentence was called for. To punish the appellant for his conduct. By making him pay for the distress that he caused the widow and her son. To deter him from visiting such agony on other widows. To deter others, who are like minded. To give him a chance, behind bars, to reflect on his evil ways.

6. I am persuaded that the appellant got what he deserved. A message must go out, that widows must be protested from such predators. I find no merit in his prayer for review of sentence.

7. I shall accordingly dismiss the appeal, as I hereby do. I confirm the sentence imposed by the trial court. It is so ordered.

JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 7THDAY OF OCTOBER 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Peter Aura, the appellant, in person.Ms. Kagai, instructed by the Director of Public Prosecutions, for the respondent.