Koima v Republic [2022] KEHC 10674 (KLR)

Koima v Republic (Criminal Appeal 57 of 2019) [2022] KEHC 10674 (KLR) (18 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10674 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal 57 of 2019

EKO Ogola, J

May 18, 2022

Between

Vincent Kibet Koima

Appellant

and

Republic

Respondent

(Being an Appeal against both the Conviction and Sentence dated 01/04/2019 in Criminal Case No. 45 of 2018 in Eldoret Law Court before Hon. Barasa - SRM)

Judgment

1. The appellant was charged with the offence of rape contrary to section 3 (1) (a), (c), (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge are that on the 14th day of February 2018 in Keiyo South District within Elgeyo Marakwet County, unlawfully and intentionally caused his genital organ to penetrate the genital organ of KC without her consent. He was charged in the alternative with the offence of indecent act with an adult contrary to section 11(1) of the Sexual Offences Act no. 3 of 2006. The particulars of the charge are that on the 14th day of February 2018 in Keiyo South District within Elgeyo Marakwet County, unlawfully and intentionally touched the private part of KC with his penis against her will.

2. The prosecution called three witnesses proving its case. The trial court convicted the appellant for the main count and sentenced him to 15 years imprisonment.

3. The appellant being dissatisfied with the decision instituted the present appeal vide a petition of appeal filed on 9th April 2019. The appeal is based on the following grounds;a.That the trial magistrate erred both in law and in fact when he convicted (me) in the instant case yet failed to find out that the medical evidence was not proved beyond all reasonable doubt.b.That the trial magistrate failed to note that the trial procedure was irregular and not procedural.c.That the evidence tendered by the prosecution was unreliable and thus impeachable under section 163 of the Evidence Act.d.That the trial magistrate erred both in law and in fact when he convicted (me) yet failed to note that the prosecution evidence was inconsistent with the charges stated.e.That the prosecution failed to establish the charges as alleged thus shifting the burden of proof to the defence in contravention of section 107 of the evidence act.f.That the trial magistrate erred both in law and in fact when he convicted (me) without considering my defence which was plausible.

4. As the first Appellate Court, this court is duty bound to re-evaluate and reconsider all the evidence adduced during the hearing afresh and come to its own conclusions about all the elements of the crimes charged. In doing so, the court must make appropriate allowance for the fact that it did not have a chance to see or hear the witnesses. See Okeno v Republic [1973] EA 32; Pandya v R (1957) EA 336, Ruwala v R (1957) EA 570.

5. PW1 testified that on 14th February 2018 at 12:30pm, a young man held her as she was coming from buying vegetables. He had alcohol which he gave her to drink. She drunk it and he then threw her to the ground. The accused then had sexual intercourse with her without her consent. When she screamed, he strangled her. There were children who were coming home from school who heard her and made noise. When the accused heard the noise, he pushed her outside the house. The neighbours came and took her to her house and she was later escorted to Kamoror hospital for treatment. The matter was reported at Kaptagat police station and she was given a form to fill, she then produced the P3 form dated 16th February 2018 which was marked as PMFI-1. According to the witness, the incident happened during the day and she saw her assailant well. She knew him as he had been their neighbour for very long.

6. PW2, Dr. Eunice Temet, testified that she filled a P3 form for the complainant. The complainant was aged 89 years. On examination there was tenderness in the upper part region, on the shoulder, on the groin area and upper thigh. That it was probable that the type of weapon used was blunt. PW2 testified that on genital examination of the complainant, small wounds were seen, there were lacerations on the posterior vaginal wall and multiple bruises on the external genital areas. She had a lot of discharge from the vagina. She concluded that the findings were consistent with rape.

7. PW3, Corporal Leah Tanui testified that she received a call on 15th February 2018 from Chief Inspector Hesbon Esindu, the OCS who informed her that there was a rape case which had been reported at their station. The suspect had been beaten and left for dead and the OCS sent PW3 to check on his condition. She later took him to the police station. The complainant was brought to the station and she recorded her statement. PW3 issued her with a P3 form and referred her to Moi Teaching and referral hospital. The complainant returned the P3 form the next day, it had been filled by a doctor and confirmed that she had been raped. She confirmed that the appellant was duly identified by the complainant.

8. The prosecution closed its case and the court found that the accused had a case to answer. He was then put on his defence. From the proceedings it is clear that section 211 of the Criminal Procedure Code was complied with.

9. DW1, the appellant, testified that on 15th February 2018 he had gone to work but at 7pm, he was attacked by neighbours who arrested him. They took him to the police station where he was informed that he was being accused of raping the complainant. He stated that he did not commit the offence and that the investigating officer never carried out a proper investigation.

10. The appellant submitted that the prosecution failed to establish a prima facie case against him with regards to the offence in the charge sheet. That the trial magistrate made a finding of guilty against him but he still maintained his innocence hence denying him a right to a fair trial; and that the prosecution failed to discharge the burden of proving their case beyond reasonable doubt.

11. The appellant submitted that he was arrested on the next day and not on the material date; that he was attacked, beaten and left for dead thereby being denied the right to life; that he wasn’t found red handed, but he was found and arrested on the next day.

12. The appellant submitted that PW1’s testimony was inconsistent and that she was hostile. PW1 had testified that the appellant was her neighbour for a long time but she did not know his name. According to her statement, she claimed that the appellant was arrested on the same day after he ran away and people gave chase. That the complainant claimed that good Samaritans who were children rescued her but she contradicted herself by testifying that there was a neighbour or witness who saw the appellant. The appellant submitted that the trial court relied on the evidence of a single witness which was dangerous in the case of sexual offence, and that there were crucial prosecution witnesses who were never called to testify.

13. He cited the case of John Kenga v Republic, CR. App. No. 1126 of 1984 where the court held that;‘’The appellant is acquitted for the fact that some of the mentioned witnesses were not summoned to clear down of his arrest especially those who arrested him.’’He submitted that the failure to call witnesses contravenes the provisions of section 150 of the Civil ProcedureCode.

14. The appellant submitted that his mitigation and alibi defence was not considered during sentencing. The appellant also prayed that the number of days spent in remand be considered and the prosecutor clearly admitted that the appellant was a first offender. Despite that, the court still sentenced him to 15 years. He submitted that pursuant to section 333 (2) of the Criminal Procedure Codethe court was to order the sentence commence from the date of the arrest. He cited Section 3 (3) of the Sexual Offences Act and submitted that he was supposed to benefit from the statutory minimum as he was a first offender. He also cited article 50 (2) (q) of the Constitution in support of his submission.

15. The appellant submitted that the onus of proof always lies on the prosecution and the appellant should not be called to prove the burden nor should it shift to the appellant in any way.

16. Ms. Okok, learned counsel for the respondent opposed the appeal vide submissions dated 14th March of 2020 to the effect that the complainant met the appellant when she was on her way home. He called her to his house, gave her alcohol and threw her to the ground and raped, and strangled her. When she screamed the school children came and rescued her. After hearing the children, the accused pushed her out. She was rescued by neighbours who took her to hospital. Her evidence was corroborated by PW2 who was the doctor who examined her two days after the incident. From PW2 and PW3’s evidence it is clear that the complainant was an old woman aged between 86 to 89 years old. The respondent submitted that the complainant knew the appellant and identified him by recognition; that he was put on his defence and gave a sworn statement. His defence was a mere denial and not strong enough to rebut the prosecution case.

17. The respondent contends that the prosecution is at liberty to avail the number of witnesses they believe will be crucial in proving their case. It cited section 124 of the Evidence Act and submitted that the trial magistrate was satisfied that the victim was telling the truth in addition to the corroborative medical evidence that was availed by the prosecution. The respondent submitted that the prosecution proved its case beyond reasonable doubt. That the trial court, after mitigation, noted that the appellant had spent time in remand custody. The respondent cited section 3(3) of the Sexual Offences Act and submitted that the sentence of 15 years was a sufficient deterrent.

Issues for determination 18. As this appeal is on conviction and sentence, the issues that arise for determination are: - Whether the prosecution proved its case beyond reasonable doubt.

Whether the trial court erred in relying on the uncorroborated evidence of one witness

Whether the trial court erred in sentencing the appellant to 15 years

Whether the prosecution proved its case beyond reasonable doubt 19. Section 3 of the Sexual Offences Act provides that: -(1)A person commits the offence termed rape if—(a)he or she intentionally and unlawfully commits an act which causes penetration with his or her 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.

20. For the rape to be established the following elements must be demonstrated: - The intentional and unlawful penetration of the genital organ of a person by another.

The absence of consent.

Where consent is obtained by force or by means of threat or by intimidation of any kind.

21. PW2 corroborated PW1s evidence after examining her. She noted that there was tenderness in the upper region, that is the shoulders, there was tenderness in the groin area and the upper thigh. On genital examination she noted the complainant had lacerations on the posterior vaginal wall, multiple bruises on the external genitals and a lot of discharge from the vagina. On urine analysis she noted that the complainant had an infection due to the presence of numerous epithelial cells. She concluded that the complainant had been raped.

22. The appellant was identified by recognition as he was her neighbour. In Kenga Chea Thoya v Republic Criminal Appeal No. 375 of 2006 (Unreported) as cited with approval in Rotich Kipsongo v Republic[2008] eKLR the Court of Appeal held;“On our own re-evaluation of the evidence, we find this to be a straight forward case in which the appellant was recognized by the witness (PW 1) who knew him. This was clearly a case of recognition rather than identification and as it has been observed severally by this Court, recognition is more satisfactory more assuring and more reliable than identification of a stranger – see Anjononi v Republic [1980] KLR 59. ”

23. Consent cannot be coerced; never implied and cannot be assumed, even in the context of a relationship. The circumstances of this case are such that consent cannot be said to have been obtained. The complainant was categorical that she did not consent to sexual intercourse.

24. In Republic v Oyier [1985] eKLR, the Court of Appeal held as follows: -“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.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.”

25. It is clear from the evidence on record and the testimony of the prosecution witnesses that the offence of rape was proven beyond reasonable doubt.

Whether The Trial Court Erred In Relying On The Uncorroborated Evidence Of One Witness 26. Section 124 of the Evidence Act states as follows;“Where there are no eye witnesses other than a person who has been defiled, the trial court shall receive evidence of such alleged victim, if it is satisfied that such alleged victim is telling the truth. Such a trial court must record the reasons for believing that witness and not the alleged perpetrator.”

27. In the case of John Muriithi Nyagah v Republic [2014] eKLR, the court noted that: -“The only evidence before the Court on the basis of which the trial Court convicted the appellant was by the complainant. Evidence of a single identifying witness especially where the conditions for positive identification are difficult must be tested with the greatest care especially where the life of an accused person is at stake and the predecessor of this Court in the case of Abdala bin Wendo and Another v R. [1953] 20 EACA 166, held that what is needed in such circumstances is “other evidence, whether it be circumstantial or direct, pointing to the guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, though based on the testimony of a single witness, can safely be accepted as free from the possibility of error.”

28. In the present case, the conditions for recognition were not difficult as the offence occurred during the day. While the prosecution was only able to avail three witnesses, there is no law that dictates the number of witnesses to be brought to court by any party. Given that the trial court had the opportunity of assessing the conduct of the victim and determining that her evidence was credible, I find no fault in the finding that the evidence was sufficient to convict the appellant. The medical evidence corroborated the evidence of the complainant as to the rape having occurred.

29. The appellant claimed to have raised a defence of alibi but a perusal of the proceedings shows that there was no such defence raised. He only raised the issue of him being at work on the next day when he was attacked, beaten and left for dead.

30. The appellant did not prove where he was on the material date therefore failing to rebut the evidence that he was the perpetrator of the offence.

Whether the trial court erred in sentencing the appellant to 15 years 31. Section 3 (3) of the Sexual Offences Act provides;(3)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.”

32. The appellant raped a senior citizen who was aged over 80 years. The trial court sentenced him to 15 years’ imprisonment. However, I believe the 15 years imprisonment is excessive. In my view, 11 years imprisonment is adequate. I have already taken into account the period of one year the appellant spent in remand.

33. The appellant shall serve a sentence of eleven (11) years from the date of conviction.

34. Accordingly, the appeal fails on conviction but partly succeeds on sentence. That is the judgment of the court.

DATED, SIGNED AND DELIVERED THIS 18TH MAY 2022E. K. OGOLAJUDGE