Samoei v Republic [2022] KEHC 13459 (KLR)

Samoei v Republic (Criminal Appeal 121 of 2019) [2022] KEHC 13459 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13459 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal 121 of 2019

RN Nyakundi, J

October 5, 2022

Between

George Bor Samoei

Appellant

and

Republic

Respondent

(An appeal against both conviction and sentence from the judgment of Hon C Obulusta (CM) in Eldoret Criminal Case No 136 of 2018 dated July 5th, 2019)

Judgment

1. The appellant, George Bor Samoei, was charged with the offence of rape contrary to section 3(1) (a) (b) as read with section 3(3) of the Sexual Offences Act. He was also charged with an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006.

2. The particulars thereof are; that on the 1st day of July 2018 within Uasin Gishu County, intentionally and unlawfully, caused his genitalia organ (penis) to penetrate the genitalia organ (vagina) of AAO without her consent. By judgment delivered on July 5th, 2019, the appellant was convicted on both charges and sentenced to serve twenty (20) years imprisonment by Hon C Obulusta, Chief Magistrate.

3. He was aggrieved by both the conviction and the sentence and filed this appeal raising the following grounds: -1. That the trial court erred in law and fact as it failed to grant this matter a fair trial.2. That the trial court erred in law and in fact by failing to observe that the prosecution was not able to prove its case beyond reasonable doubt.3. That the learned trial magistrate erred in law and in fact by convicting the appellant on the prosecution evidence that was inconsistent and uncorroborated.4. That the trial court erred in law and fact as it failed to hold that penetration as an ingredient in SOA was not conclusively proved.5. That the learned trial magistrate erred in law and fact by shifting the burden of proof from the prosecution side to the appellant.6. That the trial court erred in law and fact by failing to consider the appellant’s defence evidence.

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

The Evidence The Prosecution Case 5. The prosecution called 6 (six) witnesses in support of the charges.

6. PW1 AAO, testified that on the material date, at around 8:00 pm while at home, the appellant came and put Kshs 200/= in her hand, locked the door from inside, knocked her down and stripped her clothes before having canal knowledge with her without her consent. She screamed for help for help and neighbours came to her rescue. She went to hospital and the ppellant was arrested.

7. PW2 Mueni Mwanjia, PW4 Dorothy Achieng, and PW5 Zakayo Wanyama all testified that were near the complainant’s house when they heard a commotion. She was screaming and the door was closed. When they threatened to break the door, the door was opened and the complainant informed them that the appellant had raped her.

8. PW3 Dr Sharon Antai presented the p3 form on behalf her a colleague Dr Tenet who examined the complainant and made findings there was redness and swelling on the vaginal wall, there were traces of blood in the urine. In the doctor’s opinion the complainant had been raped.

9. PW6 PC Nelson Mukabane, the investigating officer, testified that on the material day, he was on patrol when he received a call that a rape suspect had been arrested. On arrival at the scene he arrested the appellant and the complainant went to hospital.

10. When the appellant was put on his defence, he denied the allegations that he had sexually assaulted the complainant. He told court that they had differed with the complainant over the electricity meter. He further told court that on the material day, he had gone to the complainant’s house to buy tobacco.

Submissions 11. The appellant filed his undated submissions on August 10th, 2021. The appellant submitted that the (20) years sentence that had been meted on him by the trial court was not only unjust and unfair but also extremely. He further submitted that the prosecution had failed to prove its case beyond reasonable doubt. Regarding incredibility of witness, he submitted that PW4 had alleged that she heard screams coming from the complainant’s house a fact that was not attested to by PW2.

12. The appellant argued that the prosecution evidence on record was inconsistent and uncorroborated to warrant for a conviction and subsequent sentence. That the issue penetration was not conclusive. The appellant contends that there were no injuries detected on the complainant on examination. He further argued that the age of the said injuries was never established.

Determination 13. This being a first appeal, this court is mandated to re-evaluate the evidence adduced before the trial court afresh. The Court of Appeal in Gabriel Kamau Njoroge vs Republic [1982 – 88] 1 KAR 1134 stated this on the duty of the 1st appellate court;

14. “It is the duty of the first appellate court to remember that parties are entitled to demand of the court of first appeal a decision on both questions of fact and of law and the court is required to weigh conflicting evidence and draw its own inferences and conclusions, bearing in mind always that it has neither seen or heard the witnesses and make due allowance for this.”

15. In the present appeal, the issue for determination is whether the prosecution established the offence of rape contrary to section 3(1) as read with section 3(3) of the Sexual Offences Act to the required standard of proof beyond any reasonable doubt.

16. 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;

17. “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.

19. Section 2 of the Act defines ‘penetration’ as:…the partial or complete insertion of the genital organs of a person into the genital organ of another person.

20. In the case of Mark Oiruri Mose vs R (2013) eKLR the Court of Appeal stated thus:…Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ….

21. Accordingly, 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.

22. The complainant testified that the appellant went to her house, knocked her down, undressed her and had carnal knowledge with her. It’s the complainant’s case that she did not consent to the sexual acts.

23. Section 42 of the Sexual Offences Act provides that, “a person is said to consent if he or she agrees by choice, and has the freedom and capacity to make that choice.”

24. InRepublic 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.”

25. PW2, PW3 and PW4 that on the material day they heard commotion from the complainant’s house she was screaming and that her door was closed. When they threatened to break the door, it was unlocked and they found the appellant in still putting on his trousers.

26. PW3 confirmed that on examination of the complainant, there was redness and swelling on her vaginal wall and traces of blood in her urine. The findings according to the doctor were consistent with rape.

27. 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). I have considered the evidence tendered by the prosecution and the defence and it is my finding that the sexual intercourse was not consensual.

28. As regards the identity of the perpetrator, this was not in dispute. He was a person well-known to the complainant. The complainant’s evidence was that of recognition. It is a well settled principle in criminal law that recognition is a better form of identification than identification of a total stranger. There was no doubt that the complainant properly identified the appellant as the perpetrator of the sexual assault. The appellant was known to the complainant prior to the sexual assault. The appellant does not deny being at the complainant’s house, further PW2, PW4 and PW5 who were first at the scene of the incident testified that they had found the appellant at the complainant’s house, the door was locked and when they threatened to break in it was opened. This confirms the evidence by the complainant that when the appellant entered her house, he further locked the door from inside. The court therefore holds that the prosecution established to the required standard of proof that it was the appellant who sexually assaulted the complainant.

29. 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.

30. 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.”

31. The 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.

32. 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. I am of the view that there are compelling circumstances to review the sentence of twenty (20) years and have it substituted with a period of ten (10) years custodial sentence taking into account the provisions of section 333(2) of the Criminal Procedure Code which gives rise to an appropriate sentence.

33. In the foregoing the appeal on conviction stands dismissed as the order on sentence successes to the extent outlined above. It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 5THDAY OF OCTOBER, 2022. ..........................................R NYAKUNDIJUDGE