Zakayo Richard Chesoni, James Nyarangi Onyiego, Alister Arthur Kneller
Benjamin Mwangi & another v Republic  eKLR
Mwangi v Republic
Court of Appeal, at Nakuru October 19, 1984
Kneller JA, Chesoni & Nyarangi Ag JJA
Criminal Appeal No 100 of 1984
(Appeal from the High Court at Nakuru, Masime J)
Criminal law - rape - offence of - contrary to Penal Code (cap 63) section 140 - essentials of the offence - sexual intercourse - penetration – whether presence of spermatozoa in complainant’s vagina conclusive proof of sexual intercourse.
Evidence - corroboration - sexual offence - offence of rape - uncorroborated evidence of complainant - how such evidence should be treated - duty of trial court to warn itself before convicting on such evidence - failure of trial court to warn itself - effect of such failure.
Evidence- accomplice evidence - evidence given against accused by a participant of the crime charged - whether such evidence accomplice evidence - whether such evidence reliable.
Witness - summoning of - failure by prosecution to call witness – inference which the court may draw from such failure - whether court may interfere with prosecutor’s discretion to call witnesses - duty of trial court to inform accused person of his right to cross-examine witness - duty of trial court where accused wishes to call witness.
The two appellants were jointly charged with the offences of robbery with violence and rape contrary to Penal Code (cap 63) sections 296(1) and 140 respectively. The evidence of the complainant, who was the sole witness who testified of having identified the appellants, was that the door of her bedroom had been broken into during the night and the appellants had entered, and that she had a torch. Her testimony regarding the alleged rape was that appellants had forcibly taken her out of the house to a fence where both of them had sexual intercourse with her by force.
On the material night, the complainant had not seen one Mbugua, a watchman who was under her employment, who, however, reported for work the next day and had nothing to say when he was asked why he had failed to offer any help. Mbugua was not called to give evidence. One Muthoni, who had been arrested and charged with robbery in connection with the occurrences of the material night, gave evidence implicating the second appellant in that he had told her that he had a plan and asked her to find out if the complainant’s husband was present. The trial magistrate took into account Muthoni’s evidence as that of a reliable witness. The doctor who examined the complainant had concluded that there were no injuries on her external or internal genitalia but sexual intercourse had taken place as he had found spermatozoa on a specimen taken from the complainant’s vagina. The appellants were convicted and sentenced. Their appeals to the High Court were rejected, save that their sentences of imprisonment were reduced. They filed second appeals in the Court of Appeal.
1. Whether a witness should be called by the prosecution is a matter within the discretion of the prosecutor and a court will not interfere with that discretion unless it may be shown that the prosecutor was influenced by some oblique motive.
2. There was no corroboration of the complainant’s evidence that she had been raped. In cases involving a sexual offence, it was incumbent upon the trial court to warn itself that it is not safe to convict the accused on the uncorroborated evidence of the complainant but having so warned itself, the court may nevertheless convict in the absence of corroboration where it is satisfied that the complainant’s evidence is truthful. Where no such warning is given, the conviction will be set aside unless the appellate court is satisfied that there has been no failure of justice.
3. The failure of the trial magistrate to consider the evidence regarding the watchman, who was not called as a witness, was a misdirection as the trial court was entitled to presume that the evidence which that witness would have given would, if produced, be unfavourable to the prosecution.
4. A trial court should make a full and accurate record of whether an accused wishes to call defence witnesses and if the summonses are applied for, the court should issue summonses or record its reasons for refusing the application.
5. It is the duty of a trial court to inform an accused person, where necessary, of his right to cross-examine a defence witness and to record whether the accused does so or not.
6. The trial magistrate should have treated the evidence of Muthoni as that of an accomplice and it had been a serious misdirection to treat her evidence as that of a reliable witness. Muthoni’s evidence should have been held to be untrustworthy for the reason that she was likely to swear falsely in order to shift blame from herself and being a participant of the crime, she could easily disregard the sanctity of the oath to tell the truth.
7. An essential fact to the proof of the offence of rape is the proof of penetration which establishes that sexual intercourse has taken place. The presence of spermatozoa alone in a woman’s vagina is not conclusive proof that she has had sexual intercourse nor is the absence of spermatozoa in her vagina proof of the contrary. The doctor’s evidence neither established nor corroborated the essential fact of penetration.
8. The manifest lack of corroboration of the complainant’s evidence of identification and the existence of conditions unfavourable to a correct identification led to the conclusion that it would be unsafe to allow the convictions to stand.
1. Roria v Republic  EA 583
2. Abdalla Bin Wendo & Another v Reginam (1953) 20 EACA 166
3. Oloro s/o Daitayi & Others v Reginam (1956) 23 EACA 493
4. Rex v Uberle (1938) EACA 58
5. Rex v Asumani Logoni s/o Muza (1943) 10 EACA 92
6. Canisio s/o Walwa v Reginam (1956) 23 EACA 453
7. Chila v Republic  EA 722
8. Margaret v Republic  KLR 267
9. Rex v Cherop arap Kinei & Another (1936) 3 EACA 124
10. Musa v Republic  EA 573
Simonds, Viscount., (Rt. Hon) et al. (Eds) (1952-64) Halsbury’s Laws of England, London: Butterworths 3rd Edn Vol VIII p440 para 44
Penal Code (cap 63) sections 140, 296(1), 306(a)
Mr A Etyang for Respondent