Olellei v Respondent [2023] KEHC 26518 (KLR)

Olellei v Respondent (Criminal Appeal E010 of 2023) [2023] KEHC 26518 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26518 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal E010 of 2023

DR Kavedza, J

December 8, 2023

Between

Salama Olellei

Appellant

and

Respondent

Respondent

(Being an appeal against the original conviction and sentence delivered by Hon. Nthuku PM on 8th September 2022 at Loitoktok Magistrate’s Court Sexual Offences Case no. E001 of 2022 Republic vs Salama Olellei)

Judgment

1. The appellant was charged and after a full trial convicted for the offence of rape contrary to section 3 (1) (a) (b) (c) of the Sexual Offences Act, No. 3 of 2006. He was sentenced to serve 10 years imprisonment. Being aggrieved, he filed an appeal challenging his conviction and sentence.

2. The grounds of appeal have been coalized as follows: He challenged the totality of the prosecution’s evidence against which he was convicted. He challenged the sentence as being harsh and excessive. He urged the court to vacate his conviction and set aside his sentence.

3. As this is the appellant's first appeal, the role of this appellate court of first instance is well settled. It was held in the case of Okeno v Republic [1972] EA 32 and further in the Court of Appeal case ofMark Oruri Mose v Republic [2013] eKLR that this court is duty-bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that.

4. Antony Mungati, a Clinical Officer at Loitokitok Sub County Hospital, presented a case involving a 63-year-old named PK who was allegedly sexually assaulted on 24/12/2021 at 3:00 pm. The victim had cuts and bruises on her neck, abdomen, and left knee, with a bruise on her upper back. The offense was rape against a 63-year-old lady.

5. During the examination, it was noted that the victim had abnormal genitalia due to circumcision, with no clitoris or labia minora, and whitish vaginal discharge. The accused, upon examination, showed no injuries. Various tests, including HIV, urinalysis, and PG, were conducted. The urinalysis indicated blood in the urine, suggesting trauma. The victim tested negative for HIV. The clinical officer produced several forms and exhibits, including the P3 form, PRC forms, treatment notes, and exhibits related to the case. The PRC forms contained details excluding the physical map and medication information.

6. During cross-examination by the accused, he told the court that the offense was reported on 24/12/2021, and the victim was brought for treatment on 16/2/2022 after the family traced the alleged perpetrator. Despite multiple baths, evidence of rape, such as epithelial cells and blood secondary to trauma, was still present.

7. PK,(PW 2) the complainant herein told the occurred that 24/12/2021 at 3 pm while collecting firewood in a grazing area, she was attacked by a man, later identified as Salama. He approached from behind, strangled her, and forcibly raped her. During the assault, the attacker covered her throat, preventing her from screaming.

8. The victim described the attacker as a man with a Maasai necklace, brown shirt, green trousers, and pierced ears, whom she had encountered for the first time that day when he greeted her while collecting firewood. The assault took place shortly after this encounter, lasting four to five minutes. The attacker pulled down his trousers during the rape.

9. After the assault, PK went home, bathed, changed clothes, and informed her children about the incident. They attempted to locate the attacker in the bushes but were unsuccessful. Three weeks later, she sought medical treatment at Loitokitok Hospital and reported the incident to the police. The appellan, was later arrested by other individuals far from the complainant’s home, and she identified him by his handcut.

10. During the cross-examination by the accused, Salama claimed that P was the perpetrator and that the incident occurred about 300 meters from his home. He asserted that he reported the matter to the police after three days, without informing anyone in his homestead or consulting the village elder. The complainant maintained that she could recognize Salama, and he was indeed the one who assaulted her.

11. FP(PW 3) the complainant’s son told the court that on 24/2/2021 at 3 pm, he received a call from his sister D informing him that their mother had been raped while collecting firewood. He immediately went home and, after speaking with his mother, proceeded to the forest where the incident occurred. PK provided a description of the attacker: a person with brown shorts, pierced ears, black jacket, necklaces, and black trousers that were not very black.

12. Despite their efforts, they did not find the assailant during their initial search. The family circulated information about the incident, and after twenty days, the alleged rapist was arrested.

13. PC Titus Kitui (PW 4) testified that he received a phone call at 5:00 pm from Kariuki, reporting a case at the station. Upon arrival, he found a group of people and checked the occurrence book (OB), discovering a rape case reported by PK, alleging rape by the suspect. PC Kitui called for a vehicle, and the appellant was taken to Loitokitok. The complainant had already received treatment, and PC Kitui issued a P3 form, which was subsequently filed.

14. The suspect was arrested, and PC Kitui noted that the complainant did not report the incident to the police on the same day it occurred. The arrest was carried out by Big Life Rangers, specifically David Nthina and James Kingoo. The complainant confirmed to PC Kitui that the appellant was the one who had raped her. The rangers informed PC Kitui that they handed over the suspect to Imbirikani Police Station, but their boss had not released them to record statements at that point.

15. David Ntinina,(PW 5) a ranger with Big Life Foundation, testified that on 16/1/2022, his boss, Sgt. James, called him and informed him about work to be done at Ngosua. Upon arrival, they discovered that members of the public had apprehended a man. Due to the risk of a potential lynching, they took the accused to their vehicle and subsequently to Imbirikani Police Station. Later, David Ntinina was called to record a statement. In court, the witness identified the accused, emphasizing that they rescued him from the mob in the forest or wild.

16. After close of the prosecution’s case, the appellant was found to have a case to answer and was put in his defence. He gave sworn testimony and did not call any witnesses. He told the court that on the material day of his arrest, he was attacked by three strangers who stole his phone and money. He later came to learn that they were accusing him of raping their mother. He denied committing the offence stating that the charges against him were a fabrication.

Analysis and determination. 17. This court has re-evaluated the evidence in this appeal in light of the submissions made on this appeal. Section 3(1) of the Sexual Offences Act states that a person commits the offence of rape if;“He or she intentionally and unlawfully commits an act which causes penetration with his or genital organs;a)The other person does not consent to the penetration; orb)The consent is obtained by force or by means of threats or intimidation of any kind.”

18. The prosecution was therefore required to establish penetration, absence of consent, and that the Appellant was the perpetrator of the act. On the element of penetration, the complainant testified that the appellant attacked her while she was fetching firewood and raped her. She reported the incident to her children among them PW 3. PW 1 the Clinical Officer who examined the complainant noted that the complainant gave a history of having been raped by someone known to her. He also observed that despite multiple baths, there was evidence of rape, such as epithelial cells and blood secondary to trauma, which was still present.

19. With respect to the evidence of penetration, the general rule is that even without considering the presence or otherwise of medical evidence, an offence of this nature can be proved by oral evidence of a victim of rape or circumstantial evidence. This position is fortified by the holding of the Court of Appeal in Martin Nyongesa Wanyonyi vs. Republic Criminal Appeal No. 661 of 2010, (Eldoret), citing Kassim Ali v Republic Criminal Appeal No. 84 of 2005 (Mombasa) where the court stated that:“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence.”

20. In the present appeal, penetration was proved by the complainant’s evidence which was corroborated by that of PW 1. The appellant attempted to challenge the evidence as a mere fabrication. However, the complainant’s evidence was not shaken on cross-examination. This court finds that penetration was proved to the required standard of proof beyond reasonable doubt.

21. It’s the complainant’s case that she did not consent to the sexual acts. According to the Proviso to Section 42 of the Sexual Offences Act, “a person is said to consent if he or she agrees by choice, and has the freedom and capacity to make that choice.” 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.”

22. The burden of proof lies upon the prosecution to prove that the sexual intercourse was without the consent or against the will of the complainant. A woman is said to consent only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power, to act in a manner that she wants. Consent may be either expressed or implied depending upon the nature and circumstances of the case. (See Charles Ndirangu Kibue v Republic [2016] eKLR)

23. This court has carefully considered the evidence tendered by the prosecution and particularly the complainant and the defense raised by the Appellant. This court reaches the verdict that indeed the prosecution established that the sexual intercourse was not consensual. This court finds that the trial magistrate arrived at the correct finding. The conviction was proper and was supported by the law and evidence.

24. As regards the identity of the perpetrator, this was not in dispute. He was a person known to the complainant. He was recognised by the mark on his arm and the complainant had an opportunity to clearly see him. In addition, the incident happened during the day. The appellant was therefore properly identified.

25. On sentence, the appellant was sentenced to serve 10 years imprisonment. In the sentencing proceedings, the trial court considered the appellant’s mitigation. Section 329 of the Criminal Procedure Code, gives judges and magistrates, in appropriate cases to consider mitigation and mete out a sentence that fits the offence committed despite another sentence being provided for under the Act in which the offence is prescribed.

26. Therefore, the appeal on sentence partially succeeds. The sentence of 10 years imprisonment is substituted with a sentence of three (3) years imprisonment to run from the date of his conviction.Orders accordingly.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF DECEMBER 2023. .......................D. KAVEDZAJUDGEIn the presence of:Nyaroita for the StateAppellant presentMateli C/A