John Muthoka Ndolo v Republic [2022] KEHC 2525 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

APPELLATE SIDE

(Coram: Odunga, J)

CRIMINAL APPEAL NO. E003 OF 2020

JOHN MUTHOKA NDOLO…….…….………...……….... APPELLANT

VERSUS

REPUBLIC……………………..……….…….……………RESPONDENT

(Being an Appeal from the judgment and sentence of Honourable M Opanga- SRM dated 24th July, 2019 in Kangundo PM’s Court Criminal Case No. SO 8 OF 2019)

REPUBLIC………….………………….…….….…………PROSECUTOR

VERSUS

JOHN MUTHOKA NDOLO…..………….……………………..ACCUSED

JUDGEMENT

1. The appellant, John Muthoka Ndolo, was, convicted and sentenced by the Senior Principal Magistrate’s court at Kangundo with the offence of rape c/sec 3(1)(a)(c) (3) of the Sexual Offences Act No.3 of 2006. The particulars were that on 26th day of January 2019 at [Particulars Withheld] village, Kakuyuni location in Kangundo sub-county within Machakos county, he intentionally and unlawfully caused his penis to penetrate the vagina of RNW without her consent.

2. He also faced an alternative count of committing an indecent act with an adult c/s 11(A) of the Sexual Offences Act. The particulars were that on 26th day of January 2019 at [Particulars Withheld] village, Kakuyuni location in Kangundo sub-county within Machakos county intentionally touched the vagina of RNW with his penis against her will.

3. PW1, the Complainant testified that the Appellant was not related to her used to work at her when he was young. On 26th January, 2019, the said Appellant whom they knew as Kyalo went to her home to greet them. On that day, the Complaint could not recognise him at first because he had cap on which covered his forehead. However, the Appellant introduced himself to the Complainant as Kyalo and the Complainant then recognise him. The Complainant then directed him to her son outside and that night he spent the night at the place of her son, N, PW2, and went away the next day. On the third day, the Appellant informed the Complainant that he did not have any place to go so the Complainant allowed him to spend the night in her kitchen.  The following day, the Appellant woke up and went to work and when he returned, he informed the Complainant that he had found a job nearby.

4. On that day, the Complainant had gone to give company to her grandchild as she did homework and returned to her house late. She then slept in her clothes but as she was sleeping the Appellant went to her bed uncovered her and raped her twice while covering her mouth using his hand.  When the Complainant asked who he was, the Appellant responded that he was Kyalo. As a result, the Complainant bled. The Complainant then called out for help and her grandson, N,PW4 responded and covered her. She then sent Ndiku to call the Complainant’s daughter in-law after which she was taken to the hospital where they were told to report at Kakuyuni police station.  In the meantime, she was admitted and put on drip the whole night.

5. It was her evidence that she bled from my vagina and had difficulty in walking. A P3 form was filled for her. She identified the Appellant as the person who raped her. The Complainant was was nor cross-examined by the Appellant who simply stated that he did not rape her and that it was bad blood and ill will.

6. On 26th January, 2019 at about 10pm, PW4, SNN, the Complainant’s grandson, whose house was near the Complainant’s, heard the Complainant call him saying that she was going to die. When he went to her hose and opened the door, by use of the light from his torch, he saw blood on her floor where she stood and the blood had trailed her all the way from the bedroom. The Complainant informed him that some hot fluid was coming from her private part.  PW4 then ran to call his father, PW2 who upon his arrival told him to go and call his aunt E, PW3.  They then got a motor cycle and took the Complainant to hospital.

7. According to him, after the others had taken the Complainant to the Hospital, the Appellant emerged from the maize plantation after the others had gone to hospital and when asked by PW2 If he had an ID or phone, the Appellant stated that he had neither. PW2 then told the Appellant to wait there as he followed the Complainant to the hospital since by that time they had not learnt that it was the Appellant who raped the Complainant.

8. According to the information he received from his father, PW2, the Appellant was their worker long before he was born.  He confirmed that on day one, the Appellant spent the night in his house slept after which PW2 told the Appellant to leave. He was therefore shocked to see him again on the night the Complainant was raped.

9.  According to PW4, his brother, M, called him on phone and told him that the Complainant had said it was the Appellant who had raped her. Upon searching the Appellant, they did not see or find him again.  On a later day, they traced the Appellant to his home area at a place called Zaikoni and when the Appellant saw them, he said he did not do it even before they asked him anything. The Appellant was then arrested and taken to the police post.

10. According to PW4, the Appellant stayed and worked for Mutinda for three days but was not paid since Mutinda was supposed to send the Appellant his due through phone.  However, the Appellant ran away after the offence and it took days before he was arrested. It was his evidence that the Appellant did not care to follow up on his money, but simply fled after committing the offence when he suspected that the Complainant had revealed what the Appellant did to her.

11. PW2, PNM the Complainant’s son, testified that between 1993 and 1995 he had employed accused as a shamba boy.  On 26th January, 2019 at 10. 00pm, his son, SN, who had spent the night at a house near the Complainant’s house went and told him that the Complainant had been taken ill. When he proceeded to the Complainant’s house, he found her standing by the door of her house bleeding from her vagina. PW2 then called E, PW3, to cover the complainant with a leso after which PW3 called her co-wives to help her. PW2 ten called a motor bike and the Complainant was taken to Kakuyuni dispensary where the Complainant disclosed to the medical staff that the Appellant had raped her.  While PW2 proceeded to report the matter to the police station, the Complainant was referred to Kangundo level four hospital.

12. Elizabeth Muthini Muoki, PW3, confirmed that on the Appellant was employed by the Complainant. On 26th January, 2019, she was on her way to the market at 8. 00 am when she met the Appellant and they exchanged pleasantries.  At 9. 00pm, PW3 returned home and went to sleep but at 10. 00pm while sleeping she heard N, PW2’s son calling her to hurry up as his grandmother had been taken ill. When PW3 rushed there, she saw the Appellant standing next to the Complainant’s kitchen. When she proceeded to the Complainant’s house, she found shaking in fear and unable to speak.  She then went back quickly to take off her night dress and returned. According to her, the Complainant was bleeding from her vagina. PW2 then called a motor cycle and the Complainant was taken to hospital.

13. It was her evidence that the Complainant was not able to sit well on the motor cycle.  When at the Hospital the Complainant was asked what had happened, she told the doctor that the Appellant had raped her on her bed.  They were then advised to report the matter to the police which they did at Kakuyuni post. It was her evidence that the blankets that the Complainant had slept on were blood stained.  Later the Complainant was transferred to Kangundo level four hospital where she was admitted It was her evidence that the Appellant had worked for PW2 along time ago but had since left and that when she met him on 26th she did not know where he had come from.her vagina.  we d been taken ill.

dmother was sick.  when

14. In cross-examination the witness stated that the Appellant ran away thereafter and left his money where he had worked in the few days he was there. According to the witness, the Appellant’s name was Muthoka but she did not know if it was the Complainant who named him Kyalo.

15. PW5, Denis Otwal, a clinicial at Kangundo level four, was at work on the night of 26th January, 2019 when the Complainant was taken to hospital bleeding from her vagina.  Upon examining her, he found that her clothes were blood stained and she was bleeding heavily. She gave history of sexual assault by a person known to her.  Despite doing everything he could, he was unable to stop the bleeding till morning when the bleeding reduced.

16. Upon examining the Complainant’s vagina, the witness saw an injury on the labia minora and majora which were tears.  He did other tests but both HIV, VDRL Hepatitis were negative.  In his opinion the patient was raped that night. The case, according to him was serious as he had never seen such a case before.  He duly filled in the P3 form and PRC form which he produced together with the lab test request form exhibit 4.

17. The investigating officer, PC Woman Stela Mwinzi, PW6, who was attached to Kakuyuni police post, was on 26th January, 2019 at midnight called at the station to attend to the Complainant who complained of having been raped.  She recorded her report, gave her P3 form and took her to hospital.  Upon interrogating her, the Complainant disclosed that John Muthoka also known as Kyalo, who had been staying at her home ten years back had raped her.  According to the Complainant, on the material date, the Appellant went to her home at night when she was sleeping and got into her bed and forcefully raped her.  She recognised the Appellant’s voice and knew it was him.  After the incident the Appellant went at large till 28th when he was arrested at Zaikoni by police officers from Kathiani after which he was taken to Kangundo police station before being arraigned before court.

18. According to the witness, the Complainant who was heavily bleeding from her vagina was treated and admitted at Kangundo level four Hospital.  The witness also took blankets which the Complainant had slept on which she as exhibited.

19. Upon being placed on his defence, the appellant gave an unsworn statement in which he stated on 26th January, 2019 he was at home in Zaikoni doing some work on the farm of Katulo.  On 27th January, 2019 he was at home and the next day, 28th he went to the farm and because his wife was not at home he went to the kitchen and warmed food and ate.  After taking a bathe went to Kwa Kawaya market for a walk where he bought cigarettes from one Jane in a kiosk called Kyaume. While sitting there, four men arrived on a bike and said they had been looking for him on allegation that he had raped their grandmother and ran away.  When they started beating him, he told them that the police station was nearby and they should stop beating him. He was then taken to the police where a report was made that he had raped an elderly lady.  He was later transferred to Kathiani.

20. DW2, Agnes Katulu Nzioki, a village elder from the same village as the Appellant testified that the Appellant sent for her as the village elder after she was informed that the Appellant had raped a woman.  According to her, she had never heard of anything bad the Appellant had done wrong in the village and that the allegations made against the Appellant were shocking to her.

21. It was her evidence that she had known the Appellant since birth but was not aware that he worked at Kakuyuni.  It was her testimony that on 26th January, 2019, she was with the Appellant in the village and saw him at 11. 00 in the morning but could not tell what the Appellant did in the evening.

22. DW3, Musau James Nzula, a village elder of the village and a brother to the accused, testified that he only heard when the Appellant was arrested on the allegations that he had raped a woman. PW4, Boniface Mutuku Ndolo, the Appellant’s brother testified that he saw people arrest the Appellant on allegation that he had raped a woman in the neighbouring village. It was his testimony that though the Appellant used to drink, he could not rape anyone. He however clarified that he was not with the Appellant.

23. In her judgement, the learned trial magistrate found that the Appellant was the perpetrator based on the evidence of PW1, PW2, PW3 and PW4 who saw the Appellant within the compound on the day of the incident before going away without notice. On the evidence of PW5 she found that there was penetration without consent. He therefore found that the Complainant had been raped by the Appellant, convicted him of the said offence and sent him to 10 years life imprisonment.

24. In this appeal, the Appellant submits that from the evidence of the Complainant, the offence was committed on day 4 which was 29th January, 2019 and not 26th January, 2019 as indicated in the charge sheet. It was further submitted that the prosecution failed to prove the case beyond reasonable doubt. To the Appellant since no offence was committed on 26th January, 2019, the allegations must have been instigated by a grudge as he stated. It was further submitted that the learned trial magistrate failed to make a finding on the unreliability of uncorroborated evidence. It was contended that the learned trial magistrate failed to take into account the Appellant’s plea for leniency.

25. It was submitted on behalf of the Respondent that from the evidence of the clinical officer, penetration was proved.  And that the appellant was seen and identified by the victim who had been with the appellant for three days consecutively alleging that he did not have a place to go. As regards the alleged inconsistencies, I was submitted that the minor inconsistencies by the prosecution witnesses are not fatal to the testimony of the complainant. And that such contradiction’s must be ignored and the court to consider the relevant evidence in support of the charge.

26. On the alleged defects in the charge sheet, it was submitted that the complainant as a grandmother with vast age which the clinical officer stated in his testimony to be 90 years. This could be the reason why she couldn’t pinpoint the exact date of the offence. According to the Respondent, the contradiction was well clarified by PW2, Pw3, PW4 and PW6 therefore this ground of appeal lacks merit. Regarding the sentence, it was submitted that sentencing is the discretion of the trial court and in this case, the law provides for a sentence of imprisonment for a term not less than ten year, but it may be enhanced to life. In this case, it was submitted that the sentence meted against the appellant for 10 years was lenient and considerable depending on the circumstances of the case. The trial court also took note of the appellants mitigation, being remorseful and previous conviction in meeting the sentence.

27. As for alibi defence, it was submitted that there was no alibi adduced by the appellant at the trial court. The learned trial magistrate after considering the evidence adduced by both parties found that the Appellants could not exonerate himself from the offence. Therefore, the trial magistrate went ahead and dismissed it and convicted him as the prosecution had proved their case beyond reasonable doubt.

28. It was therefore submitted that the prosecution proved all the ingredients of the offence beyond any reasonable doubt and that the conviction was safe and it should be upheld and sentence confirmed.

Determination

29. It is contended that the evidence by the Complainant suggests tat the offence was committed on 29th January, 20119 and not 2016 as indicated in the charge sheet. It is true that the evidence of that witness gave a different date of the commission of the offence from the date indicated in the charge sheet. However all the other witnesses’ testimony was in line with the date in the charge sheet. The Complainant it must be noted was 90 years old and lapse in memory at that age is not entirely unusual.

30. I have considered the material placed before the Court, the evidence for the Prosecution and the defence as well as the submissions made on their behalf in this appeal. This is a first appellate court, this court is obliged to analyse and evaluated afresh all the evidence adduced before the lower court and to draw its own conclusions while bearing in mind that it neither saw nor heard any of the witnesses. See Okeno vs. Republic [1972] EA 32where the Court of Appeal set out the duties of a first appellate court as follows:

“An Appellant on a first appeal is entitled to expect the    evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion.  (Shantilal M. Ruwala Vs. R. (1957) EA. 570).  It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions.  Only then can it decide whether the magistrate’s findings should be supported.  In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424. ”

31. Similarly, in Kiilu & Another vs. Republic [2005]1 KLR 174,the Court of Appeal stated thus;

1. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence.  The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.

2. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported.  In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.

32. It has been held that in a first appeal the appellant is entitled to expect this Court to subject the evidence on record as a whole to an exhaustive re-examination and the evidence having given allowance to the fact that this court did not see the demeanour of witnesses. Further even where the appeal turns on a question of fact, the Court has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the trial Court with such other materials as it may have decided to admit.  The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it. See Pandya vs. R [1957] EA. 336and Coghlan vs. Cumberland(3) [1898] 1 Ch. 704.

33. However, it must be stated that there is no set format to which a re-evaluation of evidence by the first appellate court should conform. I adopt what was stated by the Supreme Court of Uganda in the case of Uganda Breweries Ltd v. Uganda Railways Corporation[2002] 2 EA 634, thus:

“The extent and manner in which evaluation may be done depends on the circumstances of each case and the style used by the first Appellate Court. In this regard, I shall refer to what this court said in two cases. In Sembuya v Alports Services Uganda Limited [1999] LLR 109 (SCU), Tsekooko JSC said at 11:

‘I would accept Mr. Byenkya’s submission if he meant to say that the Court of Appeal did not go into details of the evidence, but that is really a question of style. There is really no set format to which the re-evaluation should conform. A first Appellate court is expected to scrutinise and make an assessment of the evidence but this does not mean that the Court of Appeal should write a judgment similar to that of the (trial).’”

34. InOdongo and Another vs. Bonge Supreme Court Uganda Civil Appeal 10 of 1987 (UR), Odoki, JSC(as he then was) said:

“While the length of the analysis may be indicative of a comprehensive evaluation of evidence, nevertheless the test of adequacy remains a question of substance.”

35. Under section 3(1) of the Sexual Offences Act:

“A person commits the offence termed rape if-

a.  He or she intentionally and unlawfully commits an act which causes penetration with his or genital organs;

b.  The other person does not consent to the penetration; or

c.  The consent is obtained by force or by means of threats or intimidation of any kind.”

36. I agree with the position adopted by Mativo, J in Charles Ndirangu Kibue vs. Republic [2016] eKLR that:-

“The word rape is derived from the Latin term rapio,which mean ‘to seize’. Thus rape literally means a forcible seizure. It signifies in common terminology, “as the ravishment of a woman without her consent, by force, fear, or fraud” or “the carnal knowledge of a woman by force against her will.” In other words, rape is violation with violence of the private person of a woman. A man is guilty of rape if he commits sexual intercourse with a woman either against her will or without her consent as enumerated under the Section 43 cited above.  The sex must be against the will of the complainant. The word ‘will’ implies the faculty of reasoning power of mind that determines whether to do an act or not. The expression ‘against her will’ would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition. The essence of rape is the absence of consent. Consent means an intelligent, positive concurrence of the ‘will’ of the woman. The policy behind the exemption from liability in the case of consent is based on the principle that a man or a woman is the best judge of his or her own interest, and if he or she decides to suffer a harm voluntarily, he or she cannot complain of it when it comes about. Consent means an unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates willingness to participate in the specific sexual act…Consent may be either expressed or implied depending upon the nature and circumstances of the case. However, there is a difference between consent and submission. An act of helpless resignation in the face of inevitable compulsions is not consent in law.’’

37.  The ingredients of the offence of rape therefore include intentional and unlawful penetration of the genital organ of one person by another, coupled with the absence of consent. In Republic vs. Oyier (1985) KLR pg 353, the Court of Appeal held as follows:-

“1.  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.

2. 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.

3. Where a woman yields through fear of death, or through duress, it is rape and it is no excuse that the woman consented first, if the offence was afterwards committed by force or against her will; nor is it any excuse that she consented after the fact.”

38. The first issue for determination is whether there was intentional and unlawful penetration of the genital organ of the Complainant. According to the Complainant, she was a sleep when the  Appelalnt went to her bed and raped her. Upon examination by PW5 it was found that she had heavy bleeding from her vagina.  In the case of George Owiti Raya vs. Republic [2013] eKLR it was found that:-

“There was superficial penetration because there was injury on the vaginal opening as the medical evidence has indicated and further there was a whitish-yellow foul smelling discharge seen on the genitalia...it remains therefore that there can be penetration without going past the hymen membrane.”

39. In this case, both from the oral evidence and the documentary evidemce it is clear that there was evidence of penetration and the said penetration was unlawful in the sense that it was not through the consent of the Complainant who stated that the sexual intercourse was not consensual.

40. The remaining issue is whether the said penetration was caused by the Appellant. That the Complainant and the Appellant knew each other very well is not in doubt. The Appellant had been employed by PW2, the Complainant’s son and when he returned he went and introduced himself to the Complainant and for three days he was in the Complainant’s compound.

41.  In this case, there was evidence that the Appellant was seen in the Complainant’s compound both before the incident and immediately thereafter before he disappeared. Though he stated that he was at his home, several witnesses saw him at the Complainant’s home who even offered him accommodation. In those circumstances, the scales of proof were tilted in favour of the prosecution’s version. His denial that he was not within the compound of the Complainant cannot, in those circumstances be believed. The Court of Appeal for East Africa in Rafaeri Munya alias Rafaeri Kibuka v Reginam [1953] 20 EACA 226observed that:

“The force of suspicious circumstances is augmented where the person accused attempts no explanation of facts which he may reasonably be expected to be able and interested to explain; false, incredible or contradictory statements given by way of explanation, if disapproved or disbelieved become of substantive inculpatory effect.

42. The principle applicable was well explained in the court of appeal case of Ernest Abanga Alias Onyango vs. Republic CA No.32 of 1990as follows:

“In RAFAERI MUNYA alias RAFAERI KIBUKA V REGINAM (1953) 20 EACA 226, the appellant there was convicted of murder and the case against him was mainly based on circumstantial Evidence. In his sworn evidence at the trial, he made some denials which were obviously false. It was held that: The force of suspicious circumstances is augmented where the person accused attempts no explanation of facts which he may reasonably be expected to be able and interested to explain; false, incredible or contradictory statements given by way of explanation, if disapproved or disbelieved become of substantive inculpatory effect”. This case in our view does not in any way go against the basic legal principle that the burden of proving a criminal charge beyond doubt is solely and squarely upon the prosecution. But it`s a basic holding, namely that when an accused person tells an obvious and deliberate lie which is disproved or disbelieved, then such a lie is capable of providing corroboration to other independent availably”.

43. As regards the alleged inconsistencies, it was appreciated by the Court of Appeal in John Nyaga Njuki & Others vs. Republic Nakuru Criminal Appeal No. 160 of 2000 [2002] 1 KLR 77;[2002] eKLRthat:

“In certain criminal cases, particularly those which involve many witnesses, discrepancies are in many instances inevitable. But what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused. If so, then the prosecution would not have discharged the burden squarely on it to prove the case beyond any reasonable doubt. However, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused. The discrepancies in the evidence in the matter before us are in our view, of a minor nature considering the facts and circumstances of the case.”

44. InPhilip Nzaka Watu vs. Republic [2016] eKLR,the Court of Appeal held that:

“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”

45.  In Dickson Elia Nsamba Shapwata & Another vs. The Republic, Cr. App. No. 92 of 2007 the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concluded as follows:

“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.”

46. In Erick Onyango Ondeng’ v Republic [2014] eKLR, the Court of Appeal held that:

“The hearing before the trial court invariably entails consideration of often contradictory, inconsistent and hotly contested facts. The primary duty of the trial court is to carefully analyse that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, that time-honoured devise for testing the truth or correctness of evidence. Next is the first appellate court which by law, it is its bounden duty to re-consider, re-evaluate and analyse the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (See OKENO VS REPUBLIC (1972) EA 32).  It is in the above context that this Court has said time and again that it will defer to and respect findings of fact by the trial court as affirmed by the first appellate court after due re-evaluation and analysis, because the second appellate court operates from the distinct advantage of not having seen or heard the witnesses.  This Court will therefore not interfere with findings of fact by the two courts below unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole, the courts below were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law.”

47. As was noted in Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6:

“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

48. In Joseph Maina Mwangi vs. Republic CA No. 73 of 1992 (Nairobi) Tunoi, Lakha & Bosire JJA held: -

“In any trial there are bound to be discrepancies.  An appellate court in considering those discrepancies must be guided by the working of Section 382 of the Criminal Procedure Code, viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentence.”

49. Whereas I appreciate that there were minor discrepancies in the evidence of the witnesses it is my respectful view that such minor discrepancies are common. Whether or not discrepancies in the evidence of witnesses have the effect of discrediting that evidence would depend upon the nature of the discrepancies, that is to say, whether or not the discrepancies are trifling. See Law of Evidence (10th Ed) Vol. 1 at 46

50. In Republic vs. Ahmad Abolfathi Mohammed & Another [2019] eKLR it was held that:

“As regards contradictions in the prosecution’s case, other than the fact that the appellants did not point out any specific contradictions, this Court has consistently stated that because discrepancies are bound to occur in evidence; the critical question is always whether the discrepancies are minor and inconsequential or whether they are material so as to vitiate the prosecution case. (See for example Joseph Maina Mwangi v. Republic, CR, APP No. 73 of 1993, Kimeu v. Republic (2002) 1 KAR 757andWillis Ochieng Odero v. Republic [2006] eKLR)…In this appeal, we are satisfied that there were no discrepancies of the nature that would have created doubt and vitiated the prosecution case.”

51. The same Court in David Rotich & Another vs. R. Nakuru Court of Appeal Criminal Appeal No. 75 of 1999held that:

“We notice form the record that except for one, all the statements recorded by the police were made by the witnesses in the English language. In court, it is apparent most of them gave evidence in Kipsigis, their mother tongue. It appears to us that what the police did was to record the statements in English while the witnesses might well have spoken to them in either Swahili or Kipsigis languages. We are unable to place any importance on the witnesses’ police statements. In any case, those statements were before the trial court and the Judge and the assessors must have seen them, or had them brought to their attention. They still believed the evidence of PW1 and PW2 and there is no law, as far as we are aware, that where a witnesses’ statement recorded by the police is in conflict with the evidence given by the witness in court, the evidence must of necessity be disbelieved. We have gone through the cross-examination of PW1, for instance, and we are unable to find any place at which PW1 was asked to explain the discrepancy between his police statement and his evidence in court. As we have said we do not think that the Judge and the assessors were wrong in believing the sworn testimonies of PW1 and PW2…The fact that one witness says he did not see another witness at the scene of crime does not and cannot mean the witness allegedly not seen was in fact not there. Both PW1 and PW2 were clear in their evidence that they saw these two appellants assaulting the deceased…Having looked at the whole of the recorded evidence, we are satisfied that these two appellants were correctly convicted. To be sure, there were some discrepancies in the evidence of the prosecution witnesses, but we agree with Mr Onyango Oriri, for the Republic, that the discrepancies pointed out did not go to the root of the prosecution’s case. Indeed, they were the sought of discrepancies one would expect from unsophisticated village witnesses trying their best to recall events which took place some two years ago. Like the Judge and the assessors, we are ourselves satisfied, having independently examined the recorded evidence, that the witnesses for the Republic were basically honest and their evidence proved the charge against the appellants beyond reasonable doubt.”

52. As was stated in John Cancio De SA vs. V N Amin Civil Appeal No. 27 of 1933 [1934] 1 EACA 13:

“Probably every judge has had occasion at some time or other to regard discrepancies as showing veracity, and to regard uniformity as showing fabrication, but it depends upon the nature of the discrepancies and the uniformity. If two people allege that they made a journey together from Kampala to Nairobi and they differ on such details as the time the train stopped at Eldoret, what they had for lunch and dinner, and whether it rained on the journey and where, it would be more reasonable to argue a difference in memory than that the journey was never undertaken. But if one says they made the whole of the journey by rail, and the other says they went to Entebbe by car and thence by air to Nairobi, it would be more reasonable to argue that the journey never took place than that one or both suffered from a defective memory.”

53. This was the position in Willis Ochieng Odero vs. Republic [2006] eKLR, where the Court of Appeal held:

“As for the contradictions in the prosecution evidence it may be true that such contradictions, particularly with regard to the date indicated on the P3 form as the date of the offence, is different.  But that per se is not a ground for quashing the conviction in view of the provisions of section 382 of the Criminal Procedure Code.”

54. Therefore, each case must be considered on its own particular circumstances. There are cases where the inconsistency is so minor that clearly it will be of little effect and certainly does not necessarily mean that the witness is lying or that his testimony cannot be relied on. The judge must take all the evidence and all the circumstances of the case into account in deciding whether to accept a witness’s evidence or any part of his testimony. (Nyakisia v. R. E. A. C. A. Crim. App. 35-D-71; -/5/71; Duffus P., Spry v. P. & Lutta J. A., in the East African Court of Appeal).

55. I have myself subjected the evidence adduced to fresh scrutiny and though it is true that there were inconsistencies in the evidence of the said witnesses, I am unable to find that the same were material enough to warrant interference with the decision.

56. As for alibi, in light of the evidence of PW1, PW2, PW3 and PW4 who saw the Appellant both prior to and after the incident, that alibi was clearly disproved.

57. As regards the sentence, Section 3(3) of the Sexual Offences Act provides that:

A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.

58. In this case the learned trial magistrate imposed a sentence of 10 years which I find no justification to interfere with. However, the Appellant was arrested on 28th January, 2019. Though admitted to bond, the record does not reflect that he was in fact released. Section 333(2) of the Criminal Procedure Code provides as hereunder:

(1) A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death.

(2) Subject to the provisions of section 38 of the Penal Code every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.

Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.

59. It is therefore clear that it is mandatory that the period which an accused has been held in custody prior to being sentenced must be taken into account in meting out the sentence. While the court may in its discretion decide that the sentence shall run from the date of sentencing or conviction, it is my view that in departing from the above provisions, the court is obliged to give reasons for doing so. However, where the sentence does not indicate the date from which it ought to run the presumption must be in favour of the accused that the same will be computed inclusive of the period spent in custody.

60. I associate myself with the decision in Ahamad Abolfathi Mohammed & Another vs. Republic [2018] eKLR where the Court of Appeal held that:

“The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012. ”[Emphasis mine].

61. The same Court in Bethwel Wilson Kibor vs. Republic [2009] eKLR expressed itself as follows:

“By proviso to section 333(2) of Criminal Procedure Code where a person sentenced has been held in custody prior to such sentence, the sentence shall take account of the period spent in custody. Ombija, J. who sentenced the appellant did not specifically state that he had taken into account the 9 years period that the appellant had been in custody. The appellant told us that as at 22nd September, 2009 he had been in custody for ten years and one month.  We think that all these incidents ought to have been taken into account in assessing sentence. In view of the foregoing we are satisfied that the appellant has been sufficiently punished. We therefore allow this appeal and reduce the sentence to the period that the appellant has already served. He is accordingly to be set free forthwith unless otherwise lawfully held.”

62. According to The JudiciarySentencing Policy Guidelines:

The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts on the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.

63. In this case there is no evidence that the learned trial magistrate took into account the duration that the Appellant was in custody. Therefore, while I find no reason to disturb the Appellant’s conviction and sentence, I however direct that his sentence will run from 28th January, 2019.

64. It is so ordered.

Judgement read, signed and delivered in open Court at Machakos this 9th day of February, 2022.

G V ODUNGA

JUDGE

Delivered in the presence of:

Appellant in person online

Mr Ngetich for the Respondent

CA Susan