John Ndwiga Njagi v Republic [2014] KEHC 7363 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL NO. 194 OF 2012

JOHN NDWIGA NJAGI …………….……… ………….APPELLANT

-VERSUS-

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

(From the original conviction and sentence in Criminal Case Number 273 of 2008 in the Senior Resident Magistrate’s court at Gichugu  – HON. B.J. Ndeda  –(SRM)

JUDGMENT

The appellantJOHNNDWIGA NJAGI was tried in the lower court and convicted of the offence of Rape contrary toSection 3(1) (a) of the Sexual Offences Act (theAct).

The particulars of the offence as stated in the charge sheet alleged that on the 14th day of March 2008 at Karumandi location in Kirinyaga District of the Central Province, the appellant unlawfully had carnal knowledge of AWM without her consent.

Upon his conviction, the appellant was sentenced to ten years imprisonment.

Being aggrieved by the conviction and sentence, he filed this appeal relying on seven grounds of appeal which in my view raised two major complaints namely:-

That the trial magistrate erred in law and in fact by convicting him    on the basis of insufficient evidence; that the learned trial magistrate failed to consider his   defence which according to him was not shaken by the prosecution.

Briefly, the prosecution case as narrated  by the complainant AWN who testified  as PW1 is that  on 14th March 2008  in the afternoon , she  had just finished  plucking tea  in the company of two other ladies  who instructed  her  to take the tea basket to one Ngomongo’s  house for  safe custody.  On getting to Ngomongo’s house, she found the appellant and after hanging the basket presumably on a wall, the appellant pulled her to the bedroom and threatened to cut her up with a panga if she screamed.  He then pushed her to a bed, tore her under pant, removed his trousers and had sexual intercourse with her without her consent.  PW1 recalled  that when she tried  to resist his actions, the appellant once again threatened  to cut her  to pieces  with a panga  and bury her body in the  house before  fleeing  to his home  in Meru.

From the record, it is apparent that after the appellant was through with her, he left the house and locked it from the outside.  The complainant was forced to escape from the house by jumping out of the window.   After her escape, she reported the matter to Kianyaga Police station and went to Kerugoya District Hospital for examination. The appellant was subsequently arrested upon identification by the complainant.  He was thereafter   charged with the offence for which he was tried and convicted.

In his defence, the appellant elected to give a sworn statement and did not call witnesses.  He  admitted having had carnal knowledge  of  the complainant  on the date  alleged but  omitted to specify  whether  it was  with or without her  consent.

He however asserted that the complainant had been his girl friend for a long time implying that she had consented to the sexual intercourse.

When the appeal came up for hearing, the appellant abandoned his appeal against conviction and informed the court in his oral submissions that he was only interested in pursuing his appeal against sentence.  He urged the court to review his sentence and set him free as he was suffering in prison.

On behalf of the state, Mr Sitati learned state counsel opposed the appeal and urged the court to confirm the sentence as it was lawful.

This being  the first appellate court, considering that the offence with   which the appellant  stands convicted attracts  a minimum sentence  of ten years , I find that  even though the appellant abandoned  his appeal against conviction, it is imperative for this  court to re-evaluate  the  evidence  on record  in order to find out  whether  or not his conviction was  valid  because the  success or failure of his appeal  against  sentence is dependent  on whether or not he had been properly convicted.

Having re-examined the evidence tendered before the trial court, I find that it was not disputed that the complainant and the appellant engaged in sexual intercourse on the date alleged and the only issue that was in dispute was whether the sexual act was done with or without the complainant’s consent.

My evaluation of the evidence leads me to the conclusion that the sexual intercourse between the two happened without the complainant’s consent.  This is because the  complainant denied in her evidence  on cross examination having been the appellant’s girl friend  at that time or  at any other time and she  consistently maintained that the appellant threatened her  with physical harm in order to  compel her to succumb to his unlawful  act.  The fact that force was used  on the complainant at the material time is evidenced  by the production  in evidence  of the  under pant  she had worn that day as exhibit 2 which according to the court record  was torn suggesting that it had  been removed by force as opposed to peacefully or voluntarily  as expected  when two adults engage  in consensual sexual relations.

Secondly, if indeed the complainant was  the appellant’s girl friend  and had engaged  in consensual sex  with him, it  would not have been necessary  for him to lock her  inside the house from outside and she would not  have felt  the need to flee from the house by jumping out of the window .  The fact that she did so and her immediate port of call was a police station where she  reported that the appellant had raped her leaves no doubt that the sexual intercourse between them happened without her consent.

It is therefore my considered view that the learned trial magistrate properly evaluated the evidence before him and arrived at the inevitable conclusion that the prosecution had proved the guilt of the appellant as charged beyond any reasonable doubt.  Consequently, my finding is that the appellant was properly convicted in this case.  And  as the appellant upon  conviction was sentenced to ten years imprisonment  which is the minimum  sentence prescribed by the law  for the offence, I find that the  sentence imposed  on him  by the learned trial  magistrate  was lawful.  There is therefore no basis for this court to interfere with the sentence. Accordingly, the appeal against sentence is not merited and it is hereby dismissed.

C.W. GITHUA

JUDGE

DATED, SIGNED AND DELIVERED AT KERUGOYA THIS 17TH DAY OF JANUARY 2014in the presence of:-

The appellant

Mr Sitati for the state

Mbogo Court clerk