Limo Marko Nyamohanga v Republic [2004] KEHC 890 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII CRIMINAL APPEAL NO.77 OF 2004

LIMO MARKO NYAMOHANGA …………………………………… APPELLANT

VERSUS

REPUBLIC ……………………………………………………………RESPONDENT

JUDGMENT

Appellant was convicted for the offence of rape c/s. 140 Penal Code and that of assault causing actual bodily harm c/s.251 Penal Code by Kehancha S.R.M and sentenced to 21 years and 2 years imprisonment respectively. Particulars were that on 14th June 2003 at Nyasese village in Kuria District he unlawfully had carnal knowledge of LINET KWAMBOKA without her consent. Further it was alleged that on the same day and place he unlawfully assaulted Linet Kwamboka occasioning her actual bodily harm.

In his memorandum of appeal the appellant repeated what he had said in his defence only this time in points form. He denied raping the complainant and said that the charges were fabricated by her and her father (PW2) since he had testified against one Peter Wariema, a relative of theirs whom he found raping a school girl. He said the doctor who testified was hired by the complainant and the O.C.S conspired with her. He further states that he was not allowed to call his witnesses. He asked the court to quash the conviction and set aside the sentence which is too harsh.

In his submission he said that he was not allowed to ask questions during the trial and the witness talked in Kisii which he did not understand. He did not know that he was charged with rape.

The learned state counsel Mr. Kemo supported the conviction and sentence. He reviewed the evidence of the witnesses and said it was overwhelming and the appellant was therefore properly convicted.

As for sentence he said it was proper as the offence is serious.

I do agree with the state counsel that the evidence against the appellant was candid and concrete. The complainant candidly narrated how the appellant, after sending his father back to his (appellant’s) home to allegedly assist to slaughter a goat pretended to escort her home only to pounce on her and pull her into a cassava farm where he repeatedly raped her. He first assaulted her and held her mouth to stop her from screaming. There was no mistaking who raped her for she was with the complainant that day at his home where she had gone to assist in taking care of his visitors. Her father (PW2) left appellant escorting the complainant home. He went back to his house and waited for complainant up to 9 p.m. He said he went home and complainant was not there. She appeared at 1 a.m. crying. She had been injured all over and told him appellant had raped her.

GEORGE ONGOND (PW4) the Clinical Officer who examined the complainant the next day certified that she had bruises on her neck, chest, abdomen, upper arms and thigh. He found evidence of forced sex when he examined her Private Parts. There was no evidence that that evidence was not correct.

Proceedings clearly show that the appellant knew the charge he was facing. Record shows that the charge was read and interpreted to him for English to Kuria Language which he understood.

It is also clear that he fully participated in the trial and cross-examined all the witnesses. When put on his defence, record show that he chose to give unsworn defence and said he had no witness. Indeed after he finished giving his evidence he said that he was closing his case. It is evident therefore that he was not denied a chance to call any witness. He said he had none.

I therefore find that the appellant was properly convicted and I dismiss the appeal against conviction.

As for sentence the appellant was sentenced to 21 years and 2 years respectively to run concurrently. True the first offence of rape is serious. However appellant was a first offender. In mitigation he pleaded for leniency. He said he was the sole bread winner in the family and an orphan. I feel a lesser sentence should have been considered for that offence in the circumstances. I therefore set aside the sentence of 21 years imprisonment in count 1 and substitute it with one of seven (7) years imprisonment. This will run concurrently with the sentence of 2 years in count 2.

It is so ordered.

Dated and Kisii this 3rd November 2004.

KABURU BAUNI

JUDGE

3/11/04