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|Case Number:||Criminal Appeal 9 of 2014|
|Parties:||Lawrence Munene Juma v Republic|
|Date Delivered:||05 Nov 2014|
|Court:||High Court at Voi|
|Judge(s):||Mary Muhanji Kasango|
|Citation:||Lawrence Munene Juma v Republic  eKLR|
|Case Outcome:||Appeal dismissed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CRIMINAL APPEAL NO. 9 OF 2014
LAWRENCE MUNENE JUMA ……........APPELLANT
“LAWRENCE MUNENE JUMA: On the 17th day of April 2012 at around 5.00pm VOI within Taita-Taveta County intentionally and unlawfully caused his penis to penetrate the vagina of (withheld) without her consent.”
He was also charged with the alternative charge of committing an indecent act contrary to Section 11(A) of the Act. After trial Appellant was convicted on the main charge and was sentenced to ten (10) years imprisonment. He has filed this appeal against that conviction and sentence. This being the first appellant Court, I am guided by the principles set out in the case OKENO –Vs- REPUBLIC 1972 EA 32 where it was stated-
“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya Vs R. (1957) E.A. 336 and the Appellate Court’s own decision on the evidence. The first Appellate Court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala Vs. R. (1957)E.A. 570). It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses, see Peters Vs Sunday Post (1958)E.A. 424.”
The prosecutions case was that Appellant held (name withheld) (hereinafter called 'the girl') by her mouth, pushed her whereby she fell and then raped her. PW2 and PW3, mother and sister of the girl found the girl at the scene with her clothes soiled which clothes were exhibited in the case. PW3 stated in evidence that the girl told them that Appellant had taken her to that place and that he had raped her. PW3 further stated-
“I saw the accused (Appellant) had his penis protruding. PW1 (the girl) had a lot of dirt.”
“The witness is unable to explain what is “tabia mbaya” after spending like 15 minutes trying to ask questions. She appears sick and mentally unstable.”
With that in mind it is not surprising that the girl stated she was 20 years contrary to what the mother said that she was 24 years old. The difference in the statement of her age in my view did not go to the root of the charge.
“There was a whitish discharge in the vagina [of the girl] …. A vagina swab was not done because there were no kits … The conclusion was that there was sexual act as a result of the wet vaginal discharge which looked like semen.”
The girl in support of that evidence of the Medical Officer
stated in her evidence-
“My mother took me to hospital at Voi District Hospital and the doctor examined me. He removed the waste and dirt from me which the accused (Appellant) had put in me using his penis …. I told Police that the accused had done me tabia mbaya.”
Indeed as submitted by Learned Counsel Mr. Gioche the prosecution’s evidence did show that there was penetration which was without the consent of the girl. That sufficiently satisfied the ingredients of Section 3(3) of the Act.
call the girl’s father and uncle who assisted in the apprehension of the Appellant. In this regard Appellant relied upon the case JUMA NGODIA –Vs- REPUBLIC (1982-88)1 KAR 454. The Court of Appeal inn that case held viz-
“The prosecutor has, in general, a discretion whether to call or not to call someone as a witness. If he does not calla vital reliable witness without a satisfactory explanation he runs the risk of the Court presuming that his evidence which could be and is not produced would, if produced, have been unfavourable to the prosecution.”
“Notwithstanding the provisions of Section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that Section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the Court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the Court is satisfied that the alleged victim is telling the truth.”
“It need not reach certainty, but it must carry a high decree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to defect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable,’ the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
It follows that the fact the clinic where the girl was taken did not have a kit to confirm presence of spermatozoa in the girl’s vagina cannot be a basis to find that the prosecution failed to prove its case beyond reasonable doubt. I wholly agree to so hold would be amount to injustice since there is sufficient evidence to prove Appellant raped the girl. I also echo the finding of the trial Court that the prosecution presented consistent evidence.
In the presence of:-
……………………………………. for Appellant
……………………………………. for Respondent
DATED and DELIVERED at VOI this 5TH day of NOVEMBER, 2014.