REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CRIMINAL APPEAL NO. 24 OF 2018

BETWEEN

WWN.................................................APPELLANT

AND

REPUBLIC.....................................RESPONDENT

(Being an Appeal from the original conviction and sentence in the Chief Magistrate’s Court at Murangá S.O Case No. 38 of 2016 delivered by Hon. M.W.Wachira on 12^th March, 2018).

JUDGMENT

1. This is an appeal against the judgment of Hon M.W. Wachira Chief magistrate delivered in Murang’a CMCR No.38 of 2016 on the 12/3/2018. The trial magistrate convicted the Appellant for the offence of rape C/S  3(3) of the Sexual offences Act No. 3 of 2006. He was further sentenced to serve 25 years imprisonment.

2. The Appellant appeals against the conviction and sentence of the trial court. This appeal has been preferred on the grounds that:

a) The trial magistrate erred in law and in fact when she failed to consider that the prosecution tendered a single witness evidence.

b) That the evidence did not support the charges and the appellant was not linked to the offence in question.

c) That the prosecution evidence was contradictory and thus the conviction was not safe.

d) That the court rejected the accused sworn evidence yet the prosecution had not challenged the defence .

3. The Appellant was charged with rape contrary to Section 3(3) and an alternative charge of indecent act with an adult contrary to Section 11(a) of the Sexual Offences Act. The particulars of the charge were that on 10^th day of November, 2016 at [Particulars Withheld] village in Murang’a County, he intentionally and unlawfully caused his penis to penetrate the vagina of CN without her consent and by use of force. In the alternative that, he intentionally touched the vagina of the complainant with his penis.

4. The Appellant pleaded not guilty. The prosecution called four witnesses. The Appellant was put to his defence and opted to give sworn evidence. He did not call any witnesses.

5. The prosecution moved the court under Section 37 of the Sexual Offences Act for a finding that the victim was a vulnerable witness as she had mental retardation according to medical report produced as P. exhibit 1. The court allowed this application after it examined the victim and observed that she was mute and completely disoriented. The prosecution also submitted that she was not able to talk and could not write her statement.

Submissions

6. The Appellant relied on filed written submissions and argued that the evidence was informed by the grudge held against his brother. That he was nowhere at the scene and the witnesses who testified only played the role of the victim to the police. It was his case that the circumstantial evidence did not place him at the crime scene.

7. As regards penetration, he submitted that the medical evidence established that there was no laceration or bleeding from the genitalia and that bleeding was only noted from the mouth. Further that PW3 had confirmed that there was no spermatozoa which contradicted the evidence of PW2 who claimed that there were spermatozoa. He also took issue with the assertion that the victim cried for help which was untenable as she was mentally impaired. Furthermore, two women who claimed to have seen blood and spermatozoa in the toilet were not called as prosecution witnesses to corroborate the evidence of PW1.

8. The Appellant further contended that his defence was overlooked and the onus of proof of innocence was shifted to him by the trial court which is contrary to well settled principles of law. In this regard, he submitted that that there were important questions that he asked to the prosecution witnesses which were not captured on the record. He thus urged this Court to reconsider the evidence afresh and find that the prosecution did not proof its case to the required standard.

9. Learned State Counsel, Miss Gichuru opposed the appeal. It was her case that the prosecution discharged its burden by proving the case beyond any reasonable doubt. She affirmed that the victim was mentally retarded and the court declared her a vulnerable witness.  She referred to a report by a Dr. Mburu in this regard. She submitted that PW2 corroborated PW1’s evidence by stating that she was called from her home and she found PW1 who narrated the incident. She asserted that the victim’s clothes were soiled with blood, there was vaginal discharge and that she was bleeding. The court was referred to the evidence of PW3, the Clinical Officer who examined the Victim.

10. She emphasized that the trial court warned itself against relying on circumstantial evidence but nevertheless, the prosecution’s evidence was unshaken. She submitted that the issue of grudge advanced by the Appellant was a mere denial that was unsupported by evidence.

11. Miss Gichuru thus, urged the court to uphold the conviction but was of the opinion that the sentence was too harsh in the circumstances. This was aligned to the submission that there were no aggravating factors. The court was invited to reconsider the sentence and mete out what was reasonable.

Summary of Evidence

12. This being the first appellate court its duty is to reevaluate the evidence and draw its own conclusions.  The court must however bear in mind that it did not have the advantage of observing  the demeanor of  witness and give regard for that.  See: Kiilu & Another vs. Republic [2005]1 KLR 174 in which the Court of Appeal stated thus:

“1. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.

2.  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 findings and 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.”

13. PW1, JM was the complainant on behalf of the Victim. He testified that on the date of the offence he heard cries of a child coming from inside a toilet which was outside his house. He rushed there and ordered that the person inside comes out. The Appellant opened the door from the inside. PW1 saw the victim whose trouser was below her knees and was almost coming off. The Appellant was asked what he was doing with the ‘child’ a description commonly given by PW1. The Appellant said that there was nothing he was doing.

14. PW1 stated that he saw blood and seminal fluid on the floor. Two other women came and the complainant’s mother was called. The mother and father of the victim together with the other women took her to the police station and reported the matter.

15. PW2, SW was the victim’s mother. She testified that she had gone to the flour mill and when she came back she found PW1 and two other women at her home. She was informed by PW1 that her child had been defiled by the Appellant. PW2 went to the police station where the victim was referred to hospital. She stated during cross examination that she did not have any grudge with the Appellant.

16. PW3, David Mwangi Githinji, a Senior Clinical Officer at Murang’a Referral Hospital examined the victim. He noted that her clothes were soiled with blood, there was bleeding from the mouth, the genitalia was intact and there were no lacerations or bruises. Laboratory test disclosed bacterial infection. He produced the P3 form which was filled on 10/10/16. His evidence was that there was penetration of the vagina.

17. PW4, Catherine Nduta Mwangi was the investigating officer in the case. She summed up the prosecution case, recorded necessary statements and took the victim to the hospital. She also arrested the Appellant and preferred the charge against him.

18. The Appellant’s defence to the offence was that his brother was married to PW2’s daughter but they later divorced. That he was present when his brother quarreled with his estranged wife, daughter of PW2. That PW2 called his brother and exchanged words with him. It was his case that PW2 was on a revenge mission. In cross examination, the Appellant admitted that he never cross examined the complainant and the victim’s mother on these threats.

Determination

19. I have accordingly considered the evidence adduced before the trial court as well as the respective rival submissions. I have deduced that only two issues arise for determination, namely whether the case was proved beyond a reasonable doubt and whether the sentence imposed was harsh and excessive in the circumstances.

20. The trial magistrate found that the prosecution had discharged the burden of proof beyond a reasonable doubt. This was based on circumstantial evidence on account that PW1 was not an eye witness. That the witness heard cries from the toilet and called out whoever was inside. The Appellant opened the door from inside the toilet. There was blood and seminal fluid on the floor and the complainant was found half naked. The victim was mentally incapacitated and incapable of consent. Her mother testified that she was permanently mentally impaired, and was never in control of her mental faculties. Similar evidence was borne out in the Medical Examination Form (P3 Form) adduced as exhibit 2. In this case and pursuant to Section 43(1) (c)of the Sexual Offences Act, penetration would be unlawful and intentional. The said provision reads thus:

“(1) An act is intentional and unlawful if it is committed-

(c) in respect of a person who is incapable of appreciating the nature of an act which causes the offence.”

21. No doubt a court can rely on circumstantial evidence to found a conviction. Indeed, circumstantial evidence is considered to be as good as direct evidence so long as it meets certain threshold which courts have often laid out. In Abanga alias Onyango versus Republic – Criminal Appeal number 32 of 1990, the Court of Appeal held that:

“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:-

a.  the circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established;

b.  those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

c.  the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

22. Thus, the court must be satisfied that from the inference of the facts, the only plausible conclusion was compatible with the guilt of the accused. However, reliance on circumstantial evidence does not alter the standard of proof or shift the burden of proof to the accused person. In SAWE v REPUBLIC [2003] e KLR the Court had this to say:-

“In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.  There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shift to the party accused.”

23. The findings on the learned trial magistrate were informed by the fact that the Appellant herein was locked inside the toilet with the victim, that upon opening the door the victim‘s trouser was below the knees, there was blood and spermatozoa. However, the evidence did not establish that the whitish fluid was spermatozoa and that the blood was from vaginal bleeding.

24. In as much as PW1 claimed to have been attracted to the toilet by the cries of the Victim, it was incumbent upon the prosecution to establish the existence of penetration. Section 2 of the Sexual Offences Act defines “penetration” as the partial or complete insertion of the genital organs of a person into the genital organs of another person. Thus, where there is evidence of partial or the slightest penetration of the victim’s sexual organ by the suspects penile organ the court is right to conclude that the offence was committed.

25. In this case, the prosecution had to establish that the penetration was partial/slight. PW3, the Clinical Officer who examined the Victim informed the court that he did not note vaginal injuries save that laboratory test showed a bacterial infection. He adduced both the treatment card and P3 Form in evidence. It was his evidence that based on his examination, he concluded that there was possibility of penetration.

26. However, the words possibility cast doubt on the conclusion arrived at by the witness and the trial court. It is trite law that suspicion however strong cannot constitute a basis for conviction. I have scrutinized both documents. None makes a conclusive remark of doubtless penetration. In the treatment card, exhibit 1, the remarks were, “therefore possible penetration”. The P3 Form, Exhibit 2, indicated “possible penetration due to G/m positive and Gm Negative and whitish discharge.”

27. With tremendous respect to the medical officer, nothing was easier if he had ascertained penetration than to indicate in the report that the conclusion made was evidence of possible penetration. His use of the word ‘possible’ no doubt cast doubt not only in the mind of the court but in his mind that he was not sure that penetration was committed. This then drives me to only one conclusion, that his findings were premised on guess work and therefore suspicion, merely because of the history given of the case. This is vindicated by the treatment notes which clearly showed that he relied on the history of the case given.

28. In Joan Chebichii Sawe vs. Republic [2003] e KLR, the court held that :

“The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt.”

29. There was nothing difficult in coming up with an unambiguous conclusion and prognosis in the medical documentation, which documents cannot be taken lightly given that they were authored immediately after the offence when the victim went to hospital and the injuries were examined. The witnesses cannot give evidence that strays too far from the documentary evidence particularly when the departure from the express findings is not substantiated. There is a great difference between possibility of an action and an actual happening of an action. The difference has greater weight in criminal law where the standard of proof is beyond mere possibilities.

30. Similarly, discrepancies that go to the substance of the prosecution’s case cannot be wished away. I this say not only with regards to the issue of penetration but also on the nature of the injuries the Victim is said to have suffered. According to PW1, in his evidence in chief stated that he saw “blood seminal stains on the floor” whilst referring to the scene in the toilet. PW3 on his part said that the Victim had only bled from the mouth and no injuries were suffered in the entire genitalia.

31. The above cited contradictions go to the core of the credibility of the prosecution case. There is no doubt that the issue of penetration affects the main substance of the prosecution’s case It determines the guilt or otherwise of the Appellant.

32. In the case of Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6 it was held that:

 “With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

33. I have thus come to the conclusion that there was no adequate proof that penetration, partial or full, took place. Holding in the contrary would be an invitation to speculation. What is certain is that the right conclusion is that the transaction informing the alleged offence was not successful. The fact that the victim’s trouser was dropped down to her knees and that she was locked inside the toilet with the Appellant does not necessarily lead to a conclusion that she had been raped. It is thus the conclusion of this Court that the chain of events does not point to the guilt of the Appellant.

34. Although the Appellant did not call any alibi to displace him from the scene of crime, the fact is that the prosecution failed to discharge its burden of proving the case beyond a reasonable doubt.  I sympathize with the situation if indeed there was an attempt to sexually assault the Victim who was mentally unstable. But again, the law must be obeyed to the letter. The court must pronounce itself as the law dictates. At this juncture, I need not address myself on the impropriety of the sentence.

35. In sum, I find that the prosecution did not prove its case beyond all reasonable. I quash the conviction, set aside the sentence and order that the Appellant be forthwith set free unless otherwise lawfully held. It is so ordered.

DATED AT MURANG’A THIS 3^RD DAY OF DECEMBER 2020.

G.W.NGENYE-MACHARIA

JUDGE

In the presence of:

1. Appellant in person.

2.  Mr. Waweru for the Respondent.