REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAPENGURIA

CRIMINAL APPEAL NO.5 OF 2015

JACKSON KIPROP……………….APPELLANT

VERSUS

REPUBLIC ……..…...…………..RESPONDENT

(Appeal from conviction and judgment of the lower court at Kapenguria (M. M. WACHIRA RM)  dated 16^th day of January 2015).

JUDGMENT OF THE COURT

The Appellant brought up this appeal on the following grounds;

1. That he pleaded not guilty to the charge.
2. That the trial Magistrate erred in law and facts by convicting him while the elements of the charge were not proved beyond reasonable doubt.
3. That the trial Magistrate erred in law and facts by convicting him on inconsistent and contradictory evidence and that he was to raise some more grounds during the hearing, after having had an opportunity to go through the lower court proceedings.

During the hearing of the appeal he raised two more grounds that he did his case without having the advantage of going through the witnesses statements and that the matter was determined in a day.

This being the first appeal the court has a duty to weigh evidence and make it’s own findings on issues of fact and law.

The Appellant was charged with the offence of Rape contrary to section 3(1) (a) of the Sexual Offences Act No.3 of 2006.

The particulars of the offence being that on the 19^th day of April 2014 at West Pokot County, he did intentionally and unlawfully caused his penis to penetrate the vagina of KT without her consent.

The evidence adduced in the case shows that the appellant is a grandson of the Complainant.  On the material date, the Complainant, at about 4pm was at home with some children.  The Appellant called her into his house.  He told her to go on the bed.  She went and sat on the bed.  She was not wearing a pant.  He removed his trouser, pushed her skirt up and forced her into having sex.  After he was through she screamed.  Her daughter who gave evidence as PW2 turned up.  The Complainant told her that Appellant had raped her.  PW2 checked on her private part and confirmed the report.  She found the appellant sleeping in bed.  He was drunk.  Complainant was taken to Kapenguria District Hospital and the appellant to Kapenguria police station.  Complainant was treated and released.  Her P3 form was filled on 21/4/2014.  Nothing abnormal was observed on the private part but she complained of pain on lower abdomen.  There was no discharge.

PW4 recorded the witnesses statements and preferred the charge against the accused.

The accused when he was placed on his defence gave unsworn testimony.  He said on 19/4/2014 he was at home.  He borrowed his wife 10Kshs to go for video.  He was there till 7pm when he went back home.  A lady called Celina told him that his grandmother was sick.  He was called to take her to hospital.  He was however taken to the police station.  They alleged he had raped his grandmother an allegation he denied.  He said the grandmother was demanding for a cow from appellant’s father.

The judgment by the lower court shows that the trial Magistrate rightly addressed himself as to the ingredients required to be established by the prosecution beyond reasonable doubt, for an offence of rape.  He covered the issue of penetration of a genital organ with a genital organ, issue of consent and whether the act was done intentionally and unlawfully.

The trial Magistrate unlike this court, had the opportunity to see and hear the witnesses.  He believed in their testimonies.  Their position was not successfully challenged as was argued by Mr. Thuo who appeared for the State in this Appeal.

The accused’s defence was an afterthought given that he did not cross-examine PW1 on the issue of the cow.  Complainant had no known cause to fix him, and if she had an issue with the Appellant’s father nothing prevented her from going for him rather than the appellant.

Lack of benefit of witnesses statements during trial is not equal to prejudice to the appellant.  It’s not a reason strong enough to enable the court find that if he had the benefit, he would have convinced the court otherwise.

It’s on the above grounds I do find that the appellant was rightly convicted and sentenced for the offence of rape.  I have no cause to interfere with the decision of the lower court.  The appeal is accordingly dismissed.

Read and signed in the open court.

GITHINJI J

1/10/2015