Otula v Republic [2023] KEHC 26406 (KLR)

Otula v Republic (Criminal Appeal E005 of 2022) [2023] KEHC 26406 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26406 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E005 of 2022

RPV Wendoh, J

December 14, 2023

Between

Nicholus Owili Otula

Appellant

and

Republic

Respondent

(From original conviction and sentence by Hon. S. N. Mutava – Resident Magistrate in Principal Magistrate’s Court Criminal Case No. E 011 OF 2022 delivered on 8/11/2022)

Judgment

1. Nicholas owili Otula, was convicted for the offence of Rape contrary to Section 3 (1) (a) (c ) and (3) of the Sexual Offences Act by the Hon. Resident Magistrate, Rongo.

2. In the alternative, he had been charged with the offence of committing indecent act with an adult contrary to Section 11(A) of the Sexual Offences Act. The particulars of the offence were that on 2/5/2022 at West Sakwa, Location, unlawfully and intentionally caused his penis to penetrate the vagina of MAO, by use of force or threats and that he touched the vagina of the complainant with his penis.

3. He was convicted on the main charge. No findings was made on the alternative charge. He was sentenced to serve eight (8) years imprisonment.

4. Being dissatisfied with the conviction and sentence, the appellant filed this appeal citing the following grounds of appeal.1. That the court failed to consider the fact that the complainant was of unsound mind;2. That the court failed to consider his defence;3. That the sentence is harsh and excessive.

5. He prays that the court quash the conviction and set aside the sentence.

6. The appellant filed submissions which were a reitaration of the grounds of appeal.

7. The prosecution counsel opposed the appeal through the submissions filed. Counsel submitted that under Section 3 of the Sexual Offences Act, the ingredients that constitute the offence of rape were proved. He also relied on Section 42 and 43 of the Sexual Offences Act which define what consent is , what unlawful or ‘intentional’ is and relied on the decision of Republic v Oyier [2008] eKLR where the court considered what consent entails.

8. He submitted that the act happened between the complainant and the appellant and the court has only got the word of the two, that the appellant admit to having been at complainant’s house that night but his explanation is that he had gone for his money and admits that the co-wife came to the scene after she screamed; that the appellant strangled the complainant; tore her clothes; that PW2 came to the scene and saw the appellant running away; that she went to the complainants house on hearing screams and asking not to be killed.

9. PW3’s evidence confirmed that the complainant had scratch marks on the upper limbs and lower limbs; that the injuries were evidence of a struggle and that appellant’s version that he went to PW1’s house at midnight for his money is not believable. According to counsel, there was ample evidence to prove that the offence was committed.

10. As regards sentence, counsel submitted that under Section 3 (3) Sexual Offences Act, the minimum sentence is ten (10) years imprisonment and he was given less than the minimum sentence. He urged the court to enhance the sentence.

11. This being a first appeal, it behoves this court to re-examine all the evidence tendered before the trial court, analyse it and arrive at its own determinations but bearing in mind that this court neither saw nor heard the witnesses testify. This court is guided by the findings in Okeno v Republic [1972] EA 32.

12. PW1 Maureen Awuor Otieno, told the court that the appellant is a son to her in law and recalled the 2/5/2022 about 11:00p.m, She had left the door open for the husband to enter; that the appellant entered slept on her and she screamed and he threatened to kill her and started strangling her injuring her neck; that he tore her clothes and threatened to stab her; that he inserted his penis in her vagina, as she continued to scream; that the appellant’s father saw him as he fled; that she went to sleep in her in laws house. She reported the matter to the elder next day who referred her to the Chief who asked her to go to hospital. She later reported to police.

13. PW2 Eveline Juma Wasonga told the court that the appellant is her brother in law’s son while PW1’s a wife to her in law. While asleep on 2/5/2022 about 11:00p.m she heard noises from PW1’S house where somebody was shouting that she should not be killed because she has a child and a man was telling her not to make noise or he would kill her. She went to inform an in law and they went to PW1’s house, that the in law asked what was happening and the appellant left the house running; that the in law with her had a torch which he shone at the appellant who rebuked him for what he had done; that PW1 fearing went to sleep in her house.

13. PW3 Evelyne Mbaka, a senior Clinical Officer at Awendo Sub County Hospital examined PW1 on 3/5/2022 and found that she had a whitish discharge; and labia was bloody. She filled the PCR forms. The complainant’s PW3 form was filled by her colleague, Benard on 4/5/2022 who found that she had scratch marks on both her upper and lower limbs. It was opined that she had been raped and force had been used on her.

14. PW4 PC Sarah Gimisi, the investigating Officer in this matter. The report of alleged rape was made to her on 3/5/2022. She arrested the suspect and charged him for the offence. Because PW3 alleged that PW1 was mentally fit the court ordered that she undergoes a mental assessment and was found to be mentally fit. The court also examined her and she answered the questions well.

15. Having considered all the evidence on record, the grounds of appeal and submissions, the question is whether the offence of rape was committed.

16. To prove an offence of rape under Section 3 (1) of the Sexual Offence Act the prosecution has to establish the existences of the following ingredients:-1. The offender intentionally and unlawfully commits an act which involves penetration with his or her genital organs;2. The other person does not consent to the penetration; or3. The consent is obtained by force or by means of threats or intimidation of any kind.

17. In the instant case, the alleged act of rape took place when the complainant was alone with the alleged intruder. We have the word of the complainant that the appellant forcefully penetrated her genitalia with his. The trial Court in its judgment, relied on the decision of Bassita Hassan v Uganda SCA 5 of 1995 in which the court held that an act of Sexual intercourse or penetration may be proved by direct or circumstantial evidence and usually by the evidence of the victim which can be corroborated by medical evidence or other evidence. In Kassim Ali vs. Republic Criminal Appeal 84 of 2005 Mombasa the Court of Appeal said:-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.See also Aml v. Republic [2012]eKLR Mombasa .

18. PW3 found that PW1 had a whitish discharge that was bloody on the labia. Though no injuries were found in the complainant’s genitalia, yet her testimony that the appellant had sexual intercourse with her was not controverted. The clinical officer who examined her found scratches on her hands and lower limbs which is evidence of a struggle and force used on her. PW1 told court that the appellant tore her clothes as they struggled. PW1’s testimony and the circumstantial evidence lead one to believe the complainant. The trial court believed the complainant’s testimony and this court has no reason to find otherwise.

Whether consent was proved. 19. In Republic v, Oyier [1985] KLR 353, the Court of Appeal held that the lack of consent is an essential element of the crime of rape. Section 42 of the Sexual Offences Act and 43 (1) Sexual Offences are relevant and they provides as follows:““42 and 43 (1)42. For the purposes of this Act, a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice.43. (1)An act is intentional and unlawful if it is committed—(a)in any coercive circumstance;(b)under false pretences or by fraudulent means; or(c)in respect of a person who is incapable of appreciating the nature of an act which causes the offence.

20. In*Oyier v Republic the Court saidThe 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.”

21. As noted above, the complainant was found to have sustained scratch marks on the hands and lower limbs which is evidence of a struggle. In addition, PW1 attracted people to her house through her creams. PW3 found PW1 to have injuries to the limbs. PW2, is one of the first people to arrive at the scene. The appellant admitted that indeed PW2 was at the complainants house. This court is satisfied that there was force used on the complainant and that is why she raised alarm. The act of penetration was used through force.

Whether the identification was watertight. 22. This offence occurred deep in the night. The complainant was alone. She did not tell the court whether or not there was light in the house. Courts have always held that when it comes to identification under unfavourable conditions, the court has to exercise extra caution when relying on evidence of single identifying witness. PW1 knew the appellant as the son to his in law. During the incident PW1 said she fought back but the appellant kept on telling her that he would kill her. She identified his voice.

23. In Anjononi & others v Republic [1980] KLR 59 the Court of Appeal held thatRecognition if an assailant is more satisfactory, more reassuring and more reliable than identification upon the personal knowledge of the assailant in some form or other.”

24. Although under such circumstances there is the high possibility of mistaken identity as was held in Roria v Republic [1967] EA583, in this case, PW1’s testimony was corroborated by the testimony of PW2 who came to the scene in response to the complainant’s screams. PW2 was together with another who had a torch and they saw the appellant leave the complainant’s house running. To buttress the fact that the appellant was the in complainant’s house on the said night, in cross examination of PW1 and his defence, the appellant claimed that PW1 had his money. If PW1 had the appellant’s money, why would he go to collect the money at midnight?.

25. The appellant complained that his defence was not considered. The defence was that the appellant had gone to get his 150/= from PW1 at 9:00 p.m and that instead, she started to scream alleging that he had raped her and that her co-wife came and found him at the table. Like PW1, PW2 maintained that the incident was between 11:00p.m to midnight and that the appellant fled upon their arrival. The appellant’s conduct was wanting. He is the one who had just left PW1, house. His defence that he just went to get his money is not believable. The complainants unchallenged testimony is more believable. For the above reason, I dismiss the appeal on conviction and I affirm it.

26. On the allegation that the complainant was of unsound mind, the appellant never raised that in his defence. It is only PW3 who, stated that the clinical officer who examined PW1 observed that she was mentally retarded. She did not indicated the degree of retardation. Because of PW3’s finding, the court ordered that PW1 be examined by a psychiatrist. That was done and a report was produced in court indicating that she was of sound mind PW1 testified in court, was examined and answered clearly. There was no evidence of retardation.

27. Whether the sentence is excessive: the appellant was sentenced to serve to eight years imprisonment. The prosecution filed notice of enhancement seeking to have the sentence enhanced. I have taken into account the circumstances of the case where the appellant took advantage of his own relative in the deep of the night, and forced himself on her, I do agree that he should have got a deterrent sentence. I hereby set aside the sentence of eight years which was very lenient I substitute it with ten (10) years imprisonment.It is ordered.

DELIVERED, DATED AND SIGNED AT MIGORI THIS 14TH DAY OF DECEMBER, 2023. R. WENDOHJUDGEIn presence of; -Mr. Kaino for the stateAppellant AbsentMs. Emma/ Phelix –Court Assistant