Reuben Witaba v Republic [2017] KEHC 3085 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

HIGH COURT CRIMINAL APPEAL NO.102 OF 2016

REUBEN WITABA ………….. APPELLANT

VERSUS

REPUBLIC……………..…… RESPONDENT

(An appeal against both conviction and sentence from the judgment of Hon Malesi in Kakamega Criminal Case No.53 of 2016 dated 7th October, 2016)

JUDGMENT

1. The appellant herein was convicted of the offence of attempted rape contrary to section 4 of the Sexual Offences Act No.3 of 2006 and sentenced to serve 20 years imprisonment. He was aggrieved by both the conviction and the sentence and filed this appeal raising the following grounds:-

(1)That the evidence he was convicted of was uncorroborated.

(2) That the exhibit of a black jacket did not belong to him.

(3) That no psychiatric report was produced to prove that the victim was mentally sick.

(4) That the trial magistrate did not consider the appellant’s defence which was cogent and sufficient enough to earn an acquittal.

2. The appellant wants the appeal allowed, conviction and sentence set aside and he be set at liberty.

The prosecution case:

3. The prosecution called four witnesses. The mother to the complainant PW1 stated that the complainant is mentally challenged. The trial court indeed confirmed that the complainant is mentally challenged she did not testify in the case.

The complainant’s mother PWI testified that on the 13th May 2016 at 11 am she was working in her shamba. Her daughter, the complainant, was at their home compound. She then heard her daughter make some noise. She looked up and saw her neighbour, the appellant, dragging her daughter towards a maize plantation in the direction where she, PW1, was. She stooped low and the appellant continued to drag her daughter until they reached close to where she, PW1, was. The appellant had at the time dropped his trousers down that exposed his buttocks. The complainant’s mother then pounced on the appellant and started to struggle with him. She screamed for help but nobody went to her assistance. Her daughter managed to escape. As she struggled with the appellant the jacket that he was wearing came off. He escaped and left the jacket behind.

4. The complainant’s mother reported the matter to the village elder, PW2, and to the area assistant chief, PW3. Both visited the scene. They saw a sign of struggle at the scene the incident was said to have taken place as there were broken maize stalks. The matter was reported at Shinyalu police station. P.C. Masho, PW4, visited the scene. He was given the jacket. On the following day the appellant was arrested. He was charged with the offence. He denied the charge. He was tried. Witnesses testified. The appellant’s black jacket was produced in court as exhibit – Pex1.

Defence:

5. In his defence the appellant stated that he did not know anything about the charge.

Findings by the trial court on the evidence:

6. The trial magistrate believed the evidence of the complainant’s mother that the appellant dragged the complainant into a maize plantation with the intention of defiling her. She found corroboration in the evidence of the complainant’s mother in that there were signs of a struggle at the scene of the indecent depicted by broken maize stalks. She also found corroboration in the evidence that the appellant left his jacket behind with the complainant’s mother as he escaped. She found that the appellant’s intention of defiling the girl was manifested by the evidence that he had pulled down his trousers exposing his buttocks. She found that the appellant’s intention to defile the girl was defeated by the intervention of her mother. She concluded that there was evidence of attempted rape.

The trial magistrate was guided by the judgment of Asike-Makhandia J. (as he then was) in Abraham Otieno vs Republic (2011) eKLR where the Judge said the following as to what constitutes attempted rape:-

“For an offence of attempted rape to be deemed to have been committed under the section, the prosecution must prove that the culprit acted in such manner that there was no doubt at all as to what his intention was. The intention must be to rape. It must be shown that he was about to rape the victim but was stopped in tracks and/or in the nick of time. The intention to rape must be manifest. Such intention can be manifested for instance by word of mouth or conduct of the culprit. If the culprit proclaims his intention to rape and directs his efforts towards that goal for instance, by holding the victim or pushing her to the ground, undressing her, removing her pants if at all and also unleashing his male genital organ in preparation thereof but does not go the whole hog because of factus interventions, that would be good evidence of attempted rape. Alternatively, if the culprit without expressing his intentions verbally gets hold of the victim, fondles her, removes her clothes including her pants and also undresses himself in preparation thereof but for one reason or another something happens which compels him stop, again that would be good evidence of attempted rape.”

Submissions:

7. The appellant filed written submissions that basically reiterated what was contained in his grounds of appeal. He added that the prosecution evidence was tainted with contradictions. He said that the complainant’s mother stated that the complainant could not talk yet she said that she heard the complainant making noise. That the evidence of the complainant’s mother could not be trusted.

8. The prosecution opposed the appeal. The prosecution counsel Mr Ng’etich submitted that the evidence tendered by the prosecution was corroborative and had no contradictions. That if there were any contradictions, they were minor that did not prejudice the appellant.

9. Mr Ngetich submitted that the complainant was treated as a vulnerable witness in accordance with section 31 of the Sexual Offences Act that gives the court discretion to admit the evidence of such a witness through an intermediary. That the section does not require proof by a medical personnel that the victim is a vulnerable witness. Therefore that the admission of the evidence was proper.

11. He further submitted that the fact that the complainant could not talk does not affect the trial. That it was not alleged in the evidence that the complainant talked but that she made noise. That the trial court is the one that examined the demeanour of the witnesses and made its own conclusion. He submitted that the offence of attempted defilement was proved. He urged the court to dismiss the appeal as it is devoid of merits.

DETERMINATION:

Duty of first appellate court:

12. It is the duty of a first appellate court to re-evaluate the evidence on record, analyse it and come up with its own decision/conclusion bearing in mind that it did not see the witnesses testify – see Okeno vs Republic (1972) EA 32.

13. The trial court in this case declared the complainant as a vulnerable witness after the prosecution made an application for the complainant to be declared as such on the grounds that she could not speak or understand sign language. Section 31 of the Sexual Offences Act No.3 of 2006 defines who vulnerable witness is. The section says as follows:

31(1) A court in criminal proceedings involving the alleged commission of a sexual offence, may declare a witness, other than the accused, who is to give evidence in those proceedings a vulnerable witness if such witness is –

(a) the alleged victim in the proceedings pending before the court;

(b) a child; or

14. The import of a witness being declared a vulnerable witness under section 31 of the said Act is that the witness testifies through an intermediary. Where the vulnerable person, as in this case, does not testify the person cannot be regarded as a vulnerable witness as he/she is actually not a witness in the case. The complainant’s mother in this case did not testify as an intermediary for the complainant but only gave her evidence as to what she witnessed in the case. The trial court should have taken note that the complainant was a vulnerable person who could not give her evidence in court because she was not in a position to communicate to the court due to her mental disability. The complainant should not have been regarded as a vulnerable witness as she did not testify in the case.

15. The appellant submitted that there was no medical report tendered before the court to prove that the complainant could not speak. However the evidence of her mother was that the complainant could not speak. The trial magistrate also observed the complainant in court and made a finding that she could not communicate with the court. There was no need of psychatrist’s report to prove the issue.

16. The trial magistrate believed the evidence of the complainant’s mother that the appellant dragged the complainant into a maize plantation. She believed the evidence that the appellant had at the time dropped down his trousers thereby exposing his buttocks. She believed the evidence that the appellant left behind his jacket to the complainant’s mother as he escaped. The magistrate is the one who saw the witness and assessed her credibility. It is hard to believe that the complainant’s mother would have gone all the way to manufacture the evidence about the jacket. The appellant was a neighbour to the complainant’s mother. There does not appear to have been any grudge between the complainant’s mother and the appellant. The incident took place in broad day-light. There was thereby no question of mistaken identity on the appellant by the complainant’s mother. The magistrate cannot be faulted for believing the evidence. The evidence of the complainant’s mother was credible and believable.

17. The appellant claimed that the jacket did not belong to him. The complainant’s mother stated that the jacket came off the appellant as they struggled. The complainant’s mother handed over the jacket to the village elder when she reported to him. I have no reason to differ with the findings of the magistrate that the jacket belonged to the appellant.

18. The appellant submitted that the prosecution evidence was tainted with contradictions especially the evidence of the complainant’s mother that she heard the complainant make noise yet the prosecution had stated that the complainant could not talk. However the complainant’s mother did not state in her evidence that she heard the complainant talk but that she heard her making some noise. This was thereby not a contradiction.

The appellant also stated that the trial magistrate did not consider his defence. The accused’s defence did not raise any issue relating to the commission of the offence. It was a mere denial which the trial magistrate dismissed. His defence was thereby considered.

19. The appellant was convicted of attempted rape. The offence of rape is defined under section 3(1) of the Sexual Offences Act that states that:-

“A person commits the offence termed rape if –

(a) he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;

(b) the other person does not consent to the penetration; or

20. “Intentionally and unlawfully” is defined in section 43 to mean an act committed.

(a) in any coercive circumstance

(b)…

21. In this case the appellant dragged the complainant towards a maize plantation. He therefore used coercive force to force the complainant into a maize plantation. His intention to rape the complainant was manifested in the fact that he had dropped down his trousers. His intention to rape the complainant was thwarted by the intervention of the complainant’s mother. The trial magistrate rightly found that there was evidence to prove attempted rape. The appeal on conviction has no merits and the same is dismissed.

22. The minimum sentence for the offence of attempted rape as set out in section 4 of the Sexual Offences Act is 5 years and the maximum sentence is life imprisonment. The appellant in this case was sentenced to serve 20 years imprisonment.

23. In Shadrack Kipchoge Kogo vs Republic, Eldoret Criminal Appeal No.253 of 2003 (quoted in Arthur Muya Muriuki vs ~Republic (2015) eKLR), the Court of Appeal stated the following on principles of sentencing:-

“Sentencing is essentially an exercise of the trial court and for the court to interfere, it must be shown that in passing sentence, the court took into account an irrelevant factor or that a wrong principle was applied or short of these the sentence was so harsh and excessive that an error in principle must be inferred.”

24. In Ambani vs Republic (1990) KLR 161, the court stated that a sentence imposed on an accused person must be commensurate to the moral blame worthiness of the offender and that it is not proper exercise of discretion in sentencing for the court to fail to look at the facts and circumstances of the case in their entirety before settling for any given sentence.

25. It is also a general rule in sentencing that a maximum sentence should not be imposed on a first offender – see Otieno vs Republic (1983) KLR 295. Also that a maximum sentence is intended for the worst kind of offender. The appellant in this case was a first offender. He did not have a criminal record. The sentence of 20 years was harsh and excessive in the circumstances of the case. The minimum sentence of 5 years could have sufficed.

26. In the foregoing the appeal on conviction is dismissed while the appeal on sentence is successful to the extent that the sentence imposed upon the appellant is reduced to 5 years imprisonment.

Delivered, dated and signed at Kakamega this 2nd day of October, 2017.

J. NJAGI

JUDGE

In the presence of:

N/A for Appellant

Ng’etich for State/ Respondent

George Court clerk

Appellant ………….Present

14 days right of appeal