REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KERICHO

CRIMINAL APPEAL NO.E013 OF 2021

NICHOLAS KIPROTICH RONO..............................................................APPELLANT

VERSUS

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

(Being an appeal from the Judgment of Hon. B R KIPYEGON (SRM)

in KERICHO CMCC No.91 of 2019 delivered on 24/6/2019

delivered on 24/6/2020)

JUDGMENT

1. The Appellant was convicted with the offence of rape contrary to section 10 of the Penal Code and sentenced to 10 years imprisonment on 24/6/2020.

2. The particulars of the charge were that on 13/10/2019 at [particulars withheld] Location Belgut Sub County within KERICHO Count within KERICHO County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of M. C. S  a female adult without her consent.

3. A brief summary of the prosecution evidence was that on the material day at 6pm, the complainant boarded the Appellants motor cycle at 6pm heading to Kapsoit Centre.

4. The Appellant insisted on passing through a river where he said he wanted to pick another passenger.  When they reached the river, the Appellant kicked the complainant to the ground and he undressed her and raped her.  The following day the complainant reported the matter to police at Kapsoit after she was treated at Kericho Referral Hospital.

5. The complainant knew the Appellant well as a neighbour and a rider in her village.

6. PW3 ROBERT LANGAT, a clinical officer attached to Kericho Referral Hospital said he examined the complainant on 16/10/19 and said she had swollen left peri – orbital region, bruised right forehead, neck pain and abdominal pain.

7. On vaginal examination, the Doctor said the patient had bleeding with HVS tests revealing numerous pus cells, motile spermatozoa and few epithelial cells.  He formed the opinion that there was recent penetration.

8. The Appellant said in his defence before the trial court that on 13/10/2019 he woke up well and proceeded to his usual work of digging pits.  He returned at 3pm and proceeded to his tea farm to weed.  He called two witnesses, Bernard (DW1) and Vincent (DW 2) who joined him and they went to the home of Bernard for some work.  They worked upto 7pm and they rode to Kapsoit for shopping.

9. The Appellant’s witnesses said they saw the complainant drunk on the material day when they were looking for the Appellant.

10. The trial court found the Appellant guilty as charged and convicted him and sentenced him to 10 years imprisonment.

11. The Appellant has now appealed to this court on the following amended grounds of appeal;

(i) THAT the learned trial magistrate erred in law and in fact by not appreciating that the prosecution case was borne out of fabrication and a grudge between the appellant’s family and the complainant.

(ii) THAT the trial court did not comply with the provisions of section 210 and 211 of the Criminal Procedure Code.

(iii) THAT the age of the complainant was not proved and the sentence was harsh.

12. The parties filed written submissions in the appeal as follows;

13. The Appellant submitted on three grounds contained in the amended memorandum of appeal.

14. The Appellant submitted that rape case was borne out of fabrication and a grudge between the Appellant’s family and the complainant who were neighbors.

15. The Appellant submitted that section 211 of the CPC was not complied with as the magistrate did not ask him to give his submissions on a no case to answer, failure to which the appellant submitted that he was not given a fair trial.

16. The Appellant submitted that he was convicted and sentenced on insufficient evidence, the prosecution did not produce any document to prove the age of the complainant and the sentence was harsh and excessive.

17. The Respondent submitted on seven grounds contained in the memorandum of appeal.

18. The Respondent submitted that in as much as the appellant pleaded not guilty at the trial and maintains his innocence, after an inquiry by the court, the trial court arrived at the conclusion that he was guilty of the offence. The trial court subsequently convicted and sentenced the appellant. Furthermore, the evidence against the appellant was sufficient to find him guilty.

19. The Respondent submitted that the complainant’s (PW 1) evidence was corroborated by the clinical officer (PW 3) who produced the P3 form. The clinical officer had conducted a physical examination on the complainant. The clinical officer stated his findings to wit presence of spermatozoa and bruising which suggested a recent penetrative sexual act.

20. The Respondent submitted that the prosecution’s case was consistent and there were no contradictions. The prosecution had tendered evidence and proven all the ingredients of rape beyond reasonable doubt.

21. The Respondent submitted that the failure to subject the appellant to a medical examination was not fatal to the prosecution case. The Respondent relied on the case of Tyson Mudola & 2 Ors vs. Republic 2019 eKLR.

22. The Respondent submitted that the trial court was justified in dismissing the appellant’s defense as it was not sufficient to dislodge the prosecution case.

23. The first duty of the first appellate court is to revisit the evidence adduced in the trial court and to arrive at its own conclusion whether or not to support the findings of the trial court bearing in mind that the trial court had the opportunity to see the witnesses.

24. The role of the first appellate court was set out in the case of   Okeno vs. Republic [1972] E.A 32 as follows; “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; 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...”

25. The issues for determination in this appeal are follows;

(i) Whether the Appellant was positively identified.

(ii) Whether penetration was proved.

(iii) Whether the complainant consented to the act.

(iv) Whether section 211 of the Criminal Procedure Code was complied with.

(v) Whether the sentence was excessive.

26. On the issue of identification, I find that the Appellant was well known to the complainant as a neighbor and a rider. In the case of Anjononi & Others vs. Republic [1980] KLR 59 the Court of Appeal held that; “...recognition of an assailant is more satisfactory, more reassuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or another.”

27. On the issue of penetration, I find that there is evidence of penetration.  The testimony of the complainant was corroborated by that of PW3 a clinical officer who examined her on 16/10/2019 and confirmed penetration.

28. On the issue of consent, I find that the complainant said the Appellant had carnal knowledge of her without her consent.  Proof of the age of the complainant is not required but lack of consent is mandatory.

29. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of victim, see Court of Appeal case of Alfayo Gombe Okello vs. Republic Cr. App. No. 203 of 2009 (Kisumu).

30. However, prove of the age of the Complainant is not required in rape cases.

31. In the present case, the appellant was charged with the offence of rape, the statutory definition of rape is in section 3 (1) of the Sexual Offences Act

“(1)  A person commits the offence termed rape if— 

(a) he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;

(b) the other person does not consent to the penetration; or

(c) the consent is obtained by force or by means of threats or intimidation of any kind.”

32. The main ingredients of the offence of rape created in section 3 (1) of the Sexual Offences Act include intentional and unlawful penetration of the genital organ of one person by another, coupled with the absence of consent in the case of Republic vs. Oyier[1985] KLR 353 the Court of Appeal held that;  

“1. 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.

2. 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.

3. Where a woman yields through fear of death, or through duress, it is rape and it is no excuse that the woman consented first, if the offence was afterwards committed by force or against her will; nor is it any excuse that she consented after the fact.”

33. The complainant did not consent to the sexual act, she testified that the appellant had threatened her, grabbed her neck, undressed her and raped her. Her testimony was corroborated by evidence of the clinical officer who examined her and confirmed that she had bruises in her forehead and pain in her neck area as a result of the fall.

34. On the issue as to whether section 211 was complied with, the record clearly indicates that the court explained to the Appellant his options under section 211 of the Criminal Procedure Code on page 8 of the record of appeal as follows;

“Having perused the matter, the Accused has to give a defence.  The Accused may give his defence by sworn, unsworn evidence or keep silent.”

35. I find that the Appellant thereafter called three witnesses and he gave his evidence.  Although the court did not mention section 211, I find that the same was complied with.

36. On the issue as to whether the sentence of 10 years was harsh and excessive section 3(1) of the Sexual Offences Act creates the offence of rape, provides for the ingredients of the offence to wit penetration and lack of consent whereas section 3 (3) of the Sexual Offence Act prescribes the penalty for the offence, section 3 (3) of the Sexual Offences Act  states as follows;

“A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.”

37. Sentencing is the discretion of the trial court but such discretion must be exercised judiciously and not capriciously.The discretion is however limited to the statutory minimum and maximum penalty prescribed for a particular offence.

38. In the case of Shadrack Kipchoge Kogo vs. RepublicCriminal Appeal No. 253 of 2003( Eldoret), the Court of Appeal stated as follows; “Sentence is essentially an exercise of the trial court and for this court to interfere, it must be shown that in passing the sentence, the court took into account an irrelevant factor or that a wrong principle was applied or short of those the sentence was so harsh and excessive that an error in principle must be inferred”

39. Similarly, in the case of Wanjema vs. Republic (1971) E.A. 493 the court stated as follows; “An appellate court should not interfere with the discretion which a trial court has exercised as to the sentence unless it is evident that it overlooked some material factors, took into consideration some immaterial fact, acted on wrong principle or the sentence is manifestly excessive in the circumstances of the case.”

40. I accordingly find that the sentence meted is lawful.

41. The appeal herein lacks in merit and the same is dismissed.  I uphold both conviction and sentence.

Delivered, dated and signed at Kericho this 25^th day of March 2022.

A. N. ONGERI

JUDGE