Njue v Republic [2022] KEHC 15511 (KLR)

Njue v Republic (Criminal Appeal E005 of 2022) [2022] KEHC 15511 (KLR) (16 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15511 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E005 of 2022

LM Njuguna, J

November 16, 2022

Between

John Njiru Njue

Appellant

and

Republic

Respondent

(Being an appeal from the conviction and sentence of Hon. Wasike E. in PM’s court at Siakago MCSO No. E027 of 2021 delivered on 22. 11. 2021)

Judgment

1. The appellant herein was charged with the offence of rape contrary to section 3(1) (a) (c) (3) of the Sexual Offences Act No 3 of 2006 with particulars being that on May 10, 2021 at about 1600hrs in Kiambere location of Mbeere South sub county within Embu county intentionally and unlawfully caused his penis to penetrate the vagina of NMM by use of force and threats.

2. He also faced an alternative charge of committing an indecent act with an adult contrary to section 11(a) of the SOA No 3 of 2006 whose particulars were that: on May 10, 2021 at about 1600hrs in Kiambere Location of Mbeere South sub county within Embu county intentionally touched the vagina of NMM against her will.

3. In count II, he was charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. The particulars of the offence being that May 10, 2021 at about 1600hrs in Kiambere location of Mbeere South sub county within Embu county assaulted NMM, thereby occasioning her actual bodily harm.

4. The prosecution called a total of four witnesses in support of its case and being convinced that the prosecution had proved its case beyond any reasonable doubt, the trial magistrate convicted and thereafter sentenced the appellant to ten (10) and one (1) years imprisonment in counts I and II respectively. It is against that decision that the appellant has filed this appeal based on the following grounds:i.That the learned trial magistrate erred in law and fact by not taking cognizance of the fact that the prosecution did not prove its case beyond reasonable doubt.ii.That the learned trial magistrate erred in law and fact by not taking cognizance that the prosecution’s case was marred with contradictions and inconsistencies.iii.That the learned trial magistrate erred in law and fact by not taking notice that there existed a grudge between the complainant and the appellant.iv.That the learned trial magistrate erred in law and fact by failing to consider the appellant’s defence.

5. The court directed the parties to canvass the appeal by way of written submissions and both parties complied with the said directions.

6. The appellant submitted that the case was not proved beyond any reasonable doubt, the same lacked consistency, and that the complainant used the same to frame him. That in reference to the injuries sustained by the complainant, the same could have been as a result of attack by the wild animals that are found in the forest where the complainant had gone to fetch firewood. He also submitted that he was held in custody for six days as opposed to the required time frame as provided for by the Constitution. He argued that no DNA test was done to conclusively determine that he was responsible for the alleged offence of rape. He contended that his mitigation and defence were never considered by the trial magistrate and that the charges herein were a frame up by the complainant. He urged this court to allow this appeal.

7. The respondent submitted that upon evaluation of the evidence of the four witnesses together with the sworn evidence of the appellant, the trial court convicted the appellant of the main charges of rape and assault and sentenced him to serve ten and one year imprisonment respectively. The respondent on the onset submitted that the appeal herein is destitute of merit and thus should be dismissed. The respondent argued that all the necessary ingredients of the offence were proved by the prosecution in that, in reference to penetration, the complainant gave a detailed account of what happened on the material day.

8. That on the May 10, 2021 the complainant had gone to fetch firewood when she saw the appellant approaching and he was looking suspicious. She started running away but he ran after her and grabbed her. He hit her with a blow and gagged her mouth, then took a panga and placed it on her neck and threatened to cut her. He then undressed her after which, he took out his penis and inserted it into her vagina and raped her. The appellant threatened to kill the complainant if she told anyone. Further, he poked her on her eyes and cut her with a panga on her neck. Her evidence was corroborated by that of PW3 a clinician, who produced the complainant’s treatment notes, P3 and PRC forms which corroborated the evidence of the complainant.

9. On whether there was consent, the respondent submitted that any skepticism regarding consent is dispelled by the facts of the case, the type of injuries the complainant suffered, the fact that the complainant raised alarm, fled the scene and then promptly sought treatment and reported the incident to the police, are elements that make it abundantly evident that there was no consent. Reliance was placed inter alia on the cases of Charles Ndirangu Kibue v Republic [2016] eKLR and the Court of Appeal decision of Republic v Oyier[1985] eKLR. On whether the appellant was identified, it was submitted that the appellant was a person well known to the complainant and therefore, identification was by way of recognition.

10. On the ground that DNA was not conducted to conclusively determine that the appellant was responsible for the act, it was submitted that it is now a principle in law that DNA test is not mandatory or necessary to establish an offence of rape. The respondent relied on the case of AML v Republic[2012] eKLR; as such, the same was not necessary to prove the offence of rape. On sentence, the respondent argued that the Sexual Offences Act provides for a sentence of imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life. Reliance was placed on the case of Shadrack Kipchoge Kogo v Republic eKLR to buttress the point that for a trial court’s sentence to be overturned, it must be shown that the trial court made an error in law, considered irrelevant factors or that the sentence was excessive and disproportionate. In the end, this court was urged to dismiss the appeal for it is devoid of any merit.

11. The duty of the first appellate court is to revisit the evidence adduced in the trial court and to arrive at its own conclusion whether or not to support the findings of the trial court bearing in mind that the trial court had the opportunity to see the witnesses. [See Okeno v Republic [1972] EA 32].

12. The ingredients of the offence of rape are; intentional and unlawful penetration of the genital organ of one person by another, coupled with the absence of consent. InRepublic v 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.”

13. Therefore, the issues for determination in this appeal are as follows;i.Whether the prosecution proved its case beyond reasonable doubt.ii.Whether the prosecution’s evidence was marred with contradictions and inconsistencies.iii.Whether the charges herein were instigated by a grudge between the complainant and the appellant.iv.Whether the appellant’s defence and mitigation were considered.

14. The first issue for determination is whether there was intentional and unlawful penetration of the genitalia of the complainant. The complainant vividly testified how while she was fetching firewood, the appellant violently attacked, assaulted and thereafter raped her. Further, the evidence of PW3 who produced the complainant’s treatment notes, P3 and PRC forms corroborated her evidence. I therefore find that there is evidence of penetration. [See George Owiti Raya v Republic [2013] eKLR]. And on whether there was consent, the complainant narrated how while she was in the field fetching firewood, the appellant appeared and that he looked suspicious; that she ran away but the appellant ran after her and caught up with her, grabbed, assaulted and thereafter raped her. She stated that she raised alarm, fled the scene and then promptly sought treatment and reported the incident to the police. Further, the complainant narrated how she tried to scream but the appellant gagged her mouth and threatened her with dire consequences should she tell anyone. Therefore, I hold and find that, indeed, all these elements make it abundantly evident that there was no consent.

15. On whether the appellant procured consent by way of threats and/or intimidation, I find that the appellant was well known to the complainant given that they come from the same village and further, she had known him for a long time. His denial that he was not within the area where the complainant was at the material time and that, the injuries sustained by the complainant could have been as a result of attack by the wild animals is unfounded. Indeed the complainant testified on how the appellant cut her with a panga on the neck and further threatened to kill her should she tell anyone. In that regard, it is quite evident that the said consent was obtained by use of force and threats. The Court of Appeal for East Africa in Rafaeri Munya alias Rafaeri Kibuka v Reginam [1953] 20 EACA 226 observed 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.

16. On whether the prosecution’s evidence was marred with contradictions and inconsistencies, the appellant neither submitted on the same nor pointed out the alleged contradictions and inconsistencies. But that notwithstanding, the Court of Appeal in the case of Willis Ochieng Odero v Republic [2006] eKLR, 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.”

17. 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 ECA Crim App 35-D-71; -/5/71; Duffus P, Spry v P & Lutta J A, in the East African Court of Appeal).I have independently gone through the record, and I find that the evidence by the prosecution flowed well and that there was nothing material to discredit the same.

18. On whether the appellant’s mitigation and/or defence was considered, the trial magistrate analyzed all the evidence by both the prosecution and defence and noted that the evidence adduced by the appellant was a sham and an afterthought as it failed to displace the overwhelming evidence adduced by the prosecution that clearly connected him with the offence. Therefore, I hold that this ground is baseless as the same is unfounded. [See John Muthoka Ndolo v Republic [2022] eKLR].

19. On whether the charges herein were instigated by the alleged grudge to fix the appellant herein, the complainant stated that there existed no vendetta between them. But even assuming that there existed any, the prosecution proved its case beyond reasonable doubt and this was buttressed by the confirmation by the trial magistrate who not only heard but also saw the demeanor of the witnesses herein.

20. On whether the sentence of 10 years was harsh and excessive, section 3(1) of the Sexual Offences Act creates the offence of rape, whereas section 3 (3) of the Sexual Offences Act prescribes the penalty for the offence, section 3 (3) of the Sexual Offences Act states as follows;“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.”

21. Sentencing is the discretion of the trial court but such discretion must be exercised judiciously and not capriciously. The discretion is however limited to the statutory minimum and maximum penalty prescribed for a particular offence.

22. In the case of Shadrack Kipchoge Kogo v Republic criminal appeal No 253 of 2003( Eldoret), the Court of Appeal stated as follows;“Sentence is essentially an exercise of the trial court and for this court to interfere, it must be shown that in passing the sentence, the court took into account an irrelevant factor or that a wrong principle was applied or short of those the sentence was so harsh and excessive that an error in principle must be inferred”

23. Similarly, in the case of Wanjema v Republic(1971) EA 493 the court stated as follows;“An appellate court should not interfere with the discretion which a trial court has exercised as to the sentence unless it is evident that it overlooked some material factors, took into consideration some immaterial fact, acted on wrong principle or the sentence is manifestly excessive in the circumstances of the case.”

24. I accordingly find that the sentences meted out are lawful.

25. The appeal herein lacks merit and the same is dismissed. I uphold both conviction and sentence in the two counts.

26. It is so ordered.

Delivered, dated andsigned atEmbu this 16th day ofNovember, 2022. L. NJUGUNAJUDGE....................................................for the Appellant....................................................for the Respondent