Kenneth Ouma Owigo v Republic [2017] KEHC 54 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT GARSEN

HCRA NO. 37 OF 2015

KENNETH OUMA OWIGO ............APPELANT

=VS=

REPUBLIC....................................RESPONDENT

(An appeal from the original conviction and sentence in CR. Case No. 450 of 2012 by Hon. D.M IRERI (RM) At Lamu Law Courts On 26/7/2013)

JUDGMENT

1. The appellant was convicted and sentenced to serve twenty years imprisonment for the offence of rape contrary to section 3 of the sexual offences Act of 2006 in CR. Case No. 450 of 2012.

2. The particulars of the charge were that on 26/9/2012 at around 2000 hours within Lamu County, the Appellant unlawfully caused his penis to penetrate the vagina of T W K,a woman aged 76 years without her consent.

3. The Appellant was charged with an alternative charge of indecent act with a female contrary to section 11(2) of the sexual offences Act No. 3 of 2006.

In that in the same material particulars as in count 1(above), the Appellant unlawfully and intentionally caused his penis to touch the vagina of T W K,a woman aged 76 years old.

4. The prosecution evidence in summary is that the complainant (PW1) was at her home alone on 26/9/2012 at 8pm when she heard a knock at the door. On asking who was knocking she heard a male voice and she told the person to go away and return the following day. She said the person knocked down her door and entered her house and held her throat. She said the person hit her with his teeth and over powered her.

She said there was light in her house and she recognized the man as the Appellant who was her neighbour whom she had known since childhood.

She said he carried her to her bed, undressed her and inserted his penis into her vagina and ejaculated. After he finished he took water to her and begged her not to report him and promised to bring her fish the following day. The man took her Ksh. 500 and went away. She called one Njiri and he went with his mother and the Complainant to Mpeketoni Sub-district Hospital after they reported the matter to Mpeketoni Police Station. She was admitted at the Hospital for 3 days.

5. PW2 said on 26/9/2012, the complainant woke him up at 11pm and he accompanied her to the police station and to the Hospital with his mother.

6. PW3, a Senior Clinical Officer at Mpeketoni Sub-District Hospital said heexamined the complainant on 26/9/2012. He said the complainant had injuries on the face, stomach and private parts. He said the complainant was unable to walk and she was admitted for one week. He said the complainant had chest and stomach pain and her private part had a tear.

7.  PW4, the arresting officer said he arrested the Appellant on 30/9/2012 while the complainant was still in hospital. The Appellant was arrested by members of the public and PW4 went and re-arrested him took him to Mpeketoni Police Station.

8. The Appellant said in his defence that he resides at lake Amu. He said on 26/09/2012 he was at Lake Kenyatta fishing up to 10. 30pm when he went to his house and leant that the complainant who was his neighbor had made a report against him. The appellant said on 30/9/2012 while on the road at about 5pm heading home, 3 people appeared. One of them who is the complainant's son in law had bought their land. The 3 people tied him with a rope and they asked him why he had declined to move from the land his father had sold to them.

The people took him to Mzeee Shushu's Shamba which is far from the police station. They took his money Ksh.1,800/= and also his shoes and cap. The people also assaulted him and he lost consciousness. He regained consciousness later and was taken to the police station. He was then charged with this offence which he denies.

The Appellant also said he had differences with the complainant's relative and they vowed that they will ensure that he is locked up.

9. The trial court found the Appellant guilty as charged and convicted him on the main court and sentenced him to 20 years imprisonment. The Appellant has now appealed against the conviction and sentence on the following grounds:-

(i) THAT the learned trial magistrate erred in law by depending on the evidence of identification at the scene of crime without notice that the same was un-safe.

(ii) THAT the learned trial magistrate erred in law and fact in not considering that the sentence of 20 years was not legal.

(iii) THAT the learned trial magistrate erred in law and fact by not considering that the Appellant's arrest was not well established.

(iv) THAT the learned trial magistrate did not consider that the medical evidence tendered was invalid to support the charge of rape.

(v) THAT the learned trial magistrate erred in law in failing to consider that the prosecution case was not proved beyond reasonable doubt.

(vi)  THAT the learned trial magistrate did not consider that the defence by the Appellant was reliable and to award the Appellant the benefit of doubt.

10. The appellant submitted in writing as follows:-

(i) That the prosecution relied on the medical evidence and identification by one witness and yet the incident happened at night and the identifying witness was under threat and further that the light was not brought within measurable margins.

(ii) That the neighbours who took the complainant to hospital were not called to testify and neither were the people who arrested the appellant before police re-arrested him.

(iii) That the P3 form was not produced in court before the appellant was convicted.

11. The respondent opposed to appeal on the following grounds:-

(i) That all the prosecution was required to prove was penetration and lack of consent.

(ii) That the sentence imposed by the trial magistrate is lawful as the law provides for a sentence of not less than 10 years which can be enhanced to life imprisonment.

12. I have re-evaluated the evidence before the trial Court. My duty was stated in the case of Isaac Ng'ang'a Kahiga alias Peter Ng'ang'a Kahiga vs. Republic Criminal Appeal No. 272 of 2005as follows:-

“In the same way, a court hearing a first appeal (i.e. a first appellate court) also has a duty imposed on it by law to carefully examine and analyze afresh the evidence on record and come to its own conclusion on the same but always observing that the trial court had the advantage of seeing the witnesses and observing their demeanor and so the first appellate court would give allowance of the same. There are now a myriad of case law on this but the well-known case of Okeno vs. Republic [1972] EA 32 will suffice. In this case, the predecessor of this court stated:-

“The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala vs. R. [1975]EA 57). 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; 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."

13.  I have analyzed and re-evaluated the evidence which was before the trial Court bearing in mind that the trial court had the advantage of seeing the witnesses. My findings are as follows:-

(i) There are three elements the prosecution has to prove in a case of Rape, namely penetration, identification of the victim and lack of consent. Penetration is defined under section 2(1) (d) of the Sexual Offences Act as

“ the partial or complete insertion of the genital organs of one person into the genetal organs of another person”.

The Complainant gave evidence that the Appellant had sexual intercourse with her after he knocked down the door to her house. The p.3 form confirmed that the Complainant had a tear on her private parts.

(ii) The second element that the prosecution was required to establish is the identity of the perpetrator. The Complainant testisfied that she knew the Appellant and that he was her neighbor since childhood. The Complainant said there was light in her house and she managed to recognize the Appellant. She said after the incident, the Appellant gave her water and he promised to bring her fish the following day.

(iii) The third element that the prosecution is required to prove is lack of consent. The Complainant said the Appellant broke into her house, held her throat and raped her. There is evidence that the Appellant used violence on her and was injured in the process and as a result, she was admitted for three days in the Hospital, I find that the prosecution proved lack of consent.

(iv) I also find that the trial court considered the defence evidence and found that the defence evidence did not rebut the prosecution case. The Appellant tried to raise an alibi and he also stated that there was a land dispute between his family and that of the Complainant. The trial court found the credibility of the Complainant beyond doubt.

(v) From the foregoing, the prosecution proved its case against the Appellant on the count of Rape contrary to section 3 of the Sexual Offences Act No.3 of 2006 to the required standard(beyond any reasonable doubt). The Appellant’s appeal against the conviction and sentence lacks merit and is hereby dismissed.

The conviction is safe and I accordingly uphold it and confirm the sentence.

(vi) The Appeal is accordingly dismissed and both the conviction and sentence are confirmed.

Dated, Delivered and Signed at Garsen this 12th October, 2017 in the presence of the parties.

ASENATH ONGERI

JUDGE.