Bosco Lankas v Republic [2017] KEHC 2050 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA  AT NAROK

CRIMINAL APPEAL NO. 73 OF 2017

[From the original conviction and sentence of 16/5/2014 in Criminal Case No. 375 of 2013 in the Senior Resident Magistrate’s Court at Narok, R. v. Bosco Lankas]

BOSCO LANKAS ……………APPELLANT

VERSUS

REPUBLIC …………..…..….RESPONDENT

JUDGEMENT

1. The appellant has appealed against his conviction and sentence of 15 years imprisonment  in respect of the offence of rape contrary to section 3 (1) (a) (c) (3) of the Sexual Offences Act No. 3 of 2006.

2. The state has supported both the conviction and sentence.

3. The appellant was convicted on the sole evidence of the complainant (PW 1).

4. The defence of the appellant was a bare denial.  He made an unsworn statement in his defence in which he stated that 2 police officers arrested him at an hotel at Ololulunga market.  They did not tell him why they were arresting him.  He finally testified that he was surprised to be charged with the offence of rape.

5. The appellant has raised 5 ground in his petition of appeal to this court.  In grounds 1 – 4, he has basically stated factors in support of mitigation of sentence and he urged the court to impose a non-custodial sentence.

6. Furthermore, in his supplementary petition of appeal, the appellant has raised 8 grounds of appeal. In ground 1, 2, 3, 4, 6,7 and 8, counsel for the appellant in a condensed form, has faulted the trial court for convicting the appellant when the prosecution failed to prove the offence beyond reasonable doubt.

7. The main issue raised in this appeal is whether the appellant was positively identified as the person who raped the complainant.  In this regard, the complainant testified that she was returning from selling milk at Ololulunga trading centre.  At that point in time, she saw a young man trailing her from behind.  This was on 9/1/2013 at 7. 00 p.m.  She testified that this young man who is now the appellant is her neighbour.  He grabbed her by her lesso and pulled her aside.

8. In response the complainant pleaded that he should not injure her.  The appellant ordered her to shut up and threatened to hit her with a metal studded rungu. He also threatened to drown her into a nearby river.  The complainant kept quiet out of fear.  He dragged her into the bush and then tied her hands behind her back and thereafter he forcefully had sexual intercourse with her.  After satisfying himself, the appellant took the complainant’s Nokia phone and went away.

9. The complainant further testified that she struggled and sought refuge in the home of Nabulu Kulet (PW 2) where she spent the whole night.  In the following morning, she was escorted to Ololulunga Dispensary where she was treated.  Thereafter, she reported the matter to the police, where she was issued with a P3 form. Finally it was her testimony that the appellant disappeared from his home after the commission of this offence until he resurfaced in April 2013.  The complainant alerted the police and he was arrested.

10. The complainant was examined by the clinical officer Samuel Seno (PW 4).  This clinical officer upon examination, found tenderness on the complainant stomach.  He also found tenderness on the right wrist joint.  Finally, the clinical officer found that there was inflammation in the labia menora, labia majora and her private parts from which he noted a discharge.  Laboratory tests were conducted which showed that there were  red blood cells and pus cells from her private parts which were as a result of the forceful penetration of her private parts.   According to this clinical officer, these findings confirmed rape.  He then put in evidence the P3 form as Prosecution exhibit 1.

11. I find from the complainant’s evidence that she was raped by the appellant.  She reported her being raped to PW2.  Her evidence in this regard is cogent  and was rightly believed by the trial court.  Furthermore, I find that  the appellant was positively recognized by the complainant.  The factors that favoured the recognition of the appellant were as follows.

First, the complainant  knew the appellant as a neighbour. Secondly, the complainant was in close proximity with the appellant.  Thirdly, the complainant talked with the appellant before  she was forcefully raped.

In the circumstances, I find that the appellant was positively recognized by the complainant.

12. In ground 6, the appellant has faulted the trial court for convicting him on the uncorroborated evidence of the complainant.  I find from the evidence that the trial court was entitled to convict the appellant on the sole evidence of the complainant.  If corroboration was necessary, it is found in the conduct of the appellant in running away from his home after the offence and returning there in April 2013. In the circumstances, I find no merit in this ground of appeal and is hereby dismissed.

13. This is a first appeal.  As a first appeal court, according to Okeno v. R. (1972) EA 32, I am required to scrutinize the entire evidence tendered at trial and make my own findings and conclusion.  I have done so and I find that the conviction and sentence of the appellant are supported by the evidence produced at trial.

14. The upshot of the foregoing is that the appellant’s appeal is hereby dismissed in its entirety.

Judgement delivered in open court this 5th day of October, 2017 in the presence of Mr. Kilele for appellant and Mr. Mukofu for respondent.

J. M. Bwonwonga

Judge

5/10/2017