Geoffrey Yittii v Republic [2014] KEHC 5973 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT KITALE.

CRIMINAL APPEAL NO. 54 OF 2013.

GEOFFREY YITTII ::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT.

VERSUS

REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT.

(Being an appeal from the original conviction and sentence of R.M. Washika – AG. PM in Criminal Case No. 89 of 2013 delivered on 30th April, 2013 at Kapenguria.)

J U D G M E N T.

The appellant, Geoffrey Yittii, appeared before the Principal Magistrate at Kapenguria charged with rape, contrary to section 3 (1) (a) of the Sexual Offences Act, in that on the 20th January, 2013, at Tartar West Pokot County, had sexual intercourse with Tecla Chepkemoi without her consent.

After trial, the appellant was convicted and sentenced to ten (10) years imprisonment.  However, being aggrieved by the conviction and sentence, he filed the present appeal on the basis of the grounds in the petition of appeal filed herein on 9th May, 2013.  he appeared in person at the hearing of the appeal and relied on his written submissions.  The Learned Prosecution Counsel, M/s. Limo, appearing for the state/respondent opposed the appeal and submitted that the evidence by the prosecution was sufficient in that it described the manner in which the complainant (PW1), aged 22 years old, was confronted and raped by the appellant in a bush.  That, PW3 confirmed the fact of rape and as there was no consent from the complainant, the offence was established.

The submissions by both the appellant and the respondent have been considered by this court whose duty is to re-visit the evidence and draw its own conclusions bearing in mind that the trial court had the advantage of seeing and hearing the witnesses.

In that regard, this court has considered the evidence adduced against the appellant by the three prosecution witnesses as well as the unsworn statement made by the appellant in his defence as well as the evidence of his father (DW1).  The three prosecution witnesses included the complainant, T.C (PW1), the investigating officer, P.C. Gideon Ochieng (PW2) and the clinical, Danson Litole (PW3).

What came out from the entire evidence by the prosecution and the defence, was that the complainant was indeed raped in as much as she did not consent to the act.  She said that she was heading home at 4. 00 p.m. when she was held and taken to a bush where she was raped.  She identified the appellant as the assailant and said that he took off when good Samaritans appeared at the scene following her screams.

After examining the complainant, the clinical officer (PW4) confirmed that there was actual penetration and in his investigations, P.C. Ochieng (PW2), concluded that the appellant was responsible for the offence and charged him accordingly.

Although the appellant denied the offence and contended that he was framed  up, his father (DW1) did not know anything about the offence.  He (DW1) said that he did not know what happened.

The offence occurred in broad daylight.  The possibility of wrong identification of the appellant was remote and that is why it was easy for the learned trial magistrate to not only find that the complainant was actually raped but also that the appellant was responsible for the offence.

This court does not think that the learned trial magistrate was mistaken in the findings, regard being given to the evidence adduced by the complainant and corroborated by the clinical officer (PW3).

Consequently, the appellant's conviction is hereby upheld and the sentence confirmed.

In sum, the appeal is dismissed in its entirety.

[Delivered and signed this 18th day of March, 2014. ]

J.R. KARANJA.

JUDGE.