Peter Muriithi Njoki v Republic [2017] KEHC 3347 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL 86 OF 2015

PETER MURIITHI NJOKI……………………………….………….APPELLANT

VERSUS

REPUBLIC………………………………………………………....RESPONDENT

JUDGMENT

The Appellant herein was on the 15/10/2015 convicted and sentenced to serve 10 years imprisonment for the offences of rape and being in prosecution of Narcotic Drugs. In count 1, the particulars are that on the 12th day of November, 2013 in Embu County, willfully and unlawfully caused his genital organ (Penis) to penetrate the genital organ (vagina) of R Gwithout  her consent, a person with mental disability.

In the alternative count of committing an indecent Act with an adult Contrary to section 11(l) of the Sexual Offences Act No. 3 of 2006 the particulars are that on the 12th day of November, 2013 in Embu County intentionally and unlawfully touched the genital organs (vagina) of R G with his genital organ (penis) against her will.

In the 2nd count the particulars are that on the 1st day of November, 2013 in Embu County was found in possession of 250 grammes of Cannabis Sativa in contravention of Narcotic Drugs and Psychotropic substances control Act No 4 of 1994.

The Appellant was convicted on 1st and the 2nd counts and sentenced to serve ten (10) years imprisonment.

Being dissatisfied with both the conviction and the sentence, he has Appealed to this, court and has listed 4 grounds of Appeal which can be collapsed into three as follows; the learned Magistrate failed to consider that the evidence of the prosecution was based on a single witness, the sentence was excessive and that the learned Magistrate failed to consider his defence..

The summary of the evidence as adduced before the trial Magistrate was that, on the 1/11/2013, PW1 was in his shamba planting maize when he heard a distress call originating from his brother’s house (PW2). He identified the voice as that of their retarded sister namely R G. He rushed to the direction of the distress call and met his sister coming out of their brother’s compound and on asking her what had happened she told him that the Appellant had grabbed her and slept on her.

He called his other brother (PW3) who was not very far and as he was waiting for his brother to arrive, the Appellant got out of PW2’s kitchen tying his trouser. He asked him what he had done but he ignored him. They arrested the Appellant and called the sub chief. They noted that the Appellant had something in his pocket that was parked in a black Polythene paper. They handed him over to the Administration police officer at Mutunduri from where he was escorted to Manyatta police station. They were referred to Embu General Hospital where they took their sister R G for examination and a P3 form was filled for her.

PW4 was the Assistant Chief of Rianjaji Sub Location who went to the scene after she was called by the AP from Mutunduri police post. She proceeded to the scene with other officers. At the scene they found the Appellant had been arrested and on searching him they recovered some bhang. She arrested the Appellant and took him to Manyatta police station.

Pw3 told the court that on 12/11/2013 he was at home when he was called by his brother PW1 who told him that the Appellant had raped their sister who is mentally retarded. He went to where their sister was and noticed that her clothes were torn and she had scratch marks on the neck. He and PW1 arrested the Appellant and called the area chief who sent a police officer to their home who arrested the Appellant.

PW4 was the investigating officer. It was his evidence that on 12/11/2013, the Appellant and the complainant were taken to the station by the area Assistant Chief. He issued a P3 form to the family members as the complainant is mentally retarded and asked them to take her to Embu Provincial General Hospital for examination.

She prepared an exhibit memo and delivered the suspected bhang to Nairobi Government Chemist who prepared a report and found that the plant material was bhang. She produced the same as an exhibit.

PW5 is the doctor who produced the P3 form for the complainant. Though he is not the one who filled the same, he told the court that he knew the doctor who filled it and that he was conversant with his handwriting.

On examination, it was his evidence that the complainant had laceration on labia majora, the hymen was broken and she had bruises along urinal wall.

The Appellant testified as DW1 after he was put on his defence. Basically, he admitted having slept with the complainant but he stated that the complainant had consented to having sex with him. He told the court that the Bhang was brought to the station by PW1 with whom he had a grudge because he (PW1) had once borrowed his spanner and on being asked to return it, he said it got lost.

The Appeal proceeded by way of written submissions which this court has dully considered together with all the other material before it.

The Appellant has contended that the evidence of the prosecution is based on a single witness. With regard to the first count of rape, it is noted that the complainant is a person with mental disability. On the 22/4/2014, the complainant underwent a mental status assessment, which was conducted by Dr. Thuo, a Psychiatrist. According to that report which was produced as an exhibit, the complainant was found incapable of giving evidence in court and it was after this finding that his brother PW1 did testify on her behalf in accordance with Article 50 of the constitution and the provisions of sexual offences Act.

The evidence of all the prosecution witnesses was consistent on what transpired on the 12/11/2013.

PW1 told the court how he heard a distress call from her retarded sister and rushed to the direction of the said call. She met the complainant coming out of his brother’s compound and asked her what happened. Her answer was that the Appellant who is commonly called Mboi had grabbed her and slept on her and while PW1 was still standing outside PW3’s house, the Appellant came out of PW3’s house tying up his trouser. He was arrested at the scene.

It is clear that the complainant identified the Appellant as the person who had grabbed her and slept on her. PW1 met the complainant coming out of PW3’s house and it is the same house the Appellant came out from also immediately thereafter. The Appellant was a neighbour to the complainant, PW1 and PW3 which therefore means that he was known to the complainant and it was not difficult for her to identify him and she indeed identified him. In the mental assessment report, it is clear that she was fully aware of her surroundings and environment and that she was oriented in place and person.

The evidence of PW1 and PW3 was corroborated by that of PW5. In the P3 form that he produced as exhibit, the doctor who examined the complainant noted that she had lacerations on Labia Majora, hymen was broken and she had bruises along vaginal wall. The P3 form was filled the same day the offence was committed.

On the 2nd count, PW1 stated that on arresting the Appellant, they noted that he had something in his right pocket that was packed in a black polythene paper and though they did not open, they handed him over to the Administrative Police Officers at Mutunduri. He was arrested with it.

PW4 who received the Appellant at Manyatta police station confirmed that he was taken to the station with 500 grammes of what appeared to be Bhang. He prepared an exhibit memo and delivered the suspected Bhang to Nairobi Government Chemist for analysis and according to the Government analyst report, the material was found to be Bhang.

For an Offence of rape to be proved, the prosecution must prove the penetration and that there was no consent. The medical evidence in the P3 form is clear that there was penetration and the fact that the complainant screamt for help meant that she had not consented to the intercourse and in any event, being a person with a mental disability, she could not consent.

On the contention that the sentence was excessive, I have looked at the sections of the laws under which the Appellant was charged. Under section 7 of the sexual offences Act No. 3 of 2006, the minimum sentence on conviction is not less than 10 years while under sections 3(l) and 3(2) of the Narcotic Drugs and Psychotropic Substances Control Act No 4 of 1994, the sentence provided for in section 3 (a) is ten years.

The Appellant having been found guilty of rape, the minimum sentence that the learned Magistrate ought to have imposed is ten years and therefore he was right in so doing. I find that the sentence is not excessive but it is within the law.

The Appellant has also appealed on the grounds that his defence was not considered by the learned Magistrate. A cursory look at the record shows that the defence was considered and infact, the Appellant admitted having had sexual intercourse with the complainant on the material day. Having made a finding that the complainant could not consent due to her mental status, the learned Magistrate was right in dismissing the Appellant’s defence.

With regard to count 2, the Appellant was found in possession of Bhang and after it was tested it was found to be it. I dismiss his contention that the bhang was brought to the station by PW1.

Having analyzed the evidence as hereinabove, this court finds that the Appeal has no merits and it is hereby dismissed. I find no reason to interfere with the finding by the learned Magistrate on both the conviction and the sentence.

It is so ordered.

Dated, Signed and Delivered at Embu this 2nd Day of October, 2017.

…………………………….

L. NJUGUNA

JUDGE

In the Presence of

…………………………. for the Appellant

…………………………. for the Respondent