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Kimathi v Republic (Criminal Appeal E037 of 2022) [2022] KEHC 13656 (KLR) (13 October 2022) (Judgment)
Neutral citation:
[2022] KEHC 13656 (KLR)
Republic of Kenya
Criminal Appeal E037 of 2022
TW Cherere, J
October 13, 2022
Between
Josephat Mutwiri Anampiu Alias Godfrey Mutwiri Alias Duncan Kimathi
Appellant
and
Republic
Respondent
(Being an appeal against judgment, conviction and sentence in Tigania Principal Magistrate’s Court Criminal SO Number 16 of 2019 by Hon. P.M.Wechuli (SRM) on 05th November, 2020)
Judgment
Background
1)Josephat Mutwiri Anampiu alias Godfrey Mutwiri alias Duncan Kimathi (appellant) has filed this appeal against conviction and sentence on a charge of rape contrary to section 3(1) (a) and (c) as read with section 3(3) of the Sexual Offences Act No 3 of 2006 (the Act). The offence was allegedly committed between on April 28, 2019 against CM.
Prosecution case
2)The prosecution called 3 (three) witnesses in support of the charges. Complainant stated that on the material date at about 11.00 pm, she went to [particulars withheld] Bar, partook some beer and proceeded home leaving appellant and other patrons at the bar. That as she was waiting for the gate to her house to be opened, appellant came after her, dragged her into a farm about 200 metres away and raped her. Complainant was examined by Absolom Wambua, a clinical officer, on April 29, 2019 which was a day after the alleged rape and was found with bloody stain vaginal discharge as shown on the P3 form PEXH 1. Appellant was subsequently arrested and charged.
Defence case
3)In his sworn defence, the appellant denied the offence. He stated that on April 28, 2019, he went to the bar where complainant was working and she started shouting calling him a thief over some 400/- he owed her for beer he had taken on April 25, 2019. That out of that disagreement, complainant reported that he had raped her and he was arrested and charged.
4)In a judgment dated February 26, 2021, appellant was convicted and sentenced to serve 10 years’ imprisonment.
Appeal
5)Dissatisfied with the sentence, the appellant lodged the instant appeal mainly on the ground that there was no evidence of rape and that circumstances of identification at night were not conducive.
Analysis and determination
6)I have considered the appeal and I have deduced the issues for determination as follows:i)Whether penetration was provedii)Whether appellant was the perpetrator
Whether penetration was proved
7)After complainant reported that she had been raped, she was examined Absolom Wambua a day after the alleged rape and was found with bloody stain vaginal discharge. He concluded that sexual intercourse had taken place. There were no injuries on external or internal genitalia. On the evidence of the bloody stain vaginal discharge, the learned trial magistrate determined that the charge of rape had been proved.
8)I have considered the clinical officer’s evidence and I find that it did no more than support complainant’s evidence and the conclusion that the bloody stain vaginal discharge was evidence of penetration. With respect however, the presence of bloody stain vaginal discharge alone in a woman’s vagina is not conclusive proof that she has had rape nor is the absence proof of the contrary. What is required to prove that rape has taken place is proof of penetration, an essential fact which the clinical officer’s evidence did not establish.
Whether Appellant was the perpetrator
9)Visual identification in criminal cases can cause miscarriage of justice and should be carefully tested. The court in Wamunga v Republic [1989] KLR 424 at 426 had this to say:
10)In the case of R v Turnbull, [1976] 3 All ER 551 Lord Widgery CJ observed as follows on identification: -
11)In the recent case of John Muriithi Nyagah v Republic [2014] eKLR, the Court of Appeal held: -
12)Complainant stated there was electric lighting at the gate from where appellant dragged her from. The offence was committed about 11. 30 pm in the night. The evidence on record reveals that the prosecution neither led evidence as to the nature of the light, the strength of the light, its size and its position relative to the appellant nor did the court make inquiry of the same.
13)From the foregoing, I find that the circumstances pertaining to the identification of appellant, at night, was not free from error and the danger of mistaken identification was therefore great.
14)The standard of proof in criminal case such as this one must be beyond reasonable doubt enough to lead to a conviction. Our criminal justice system is pegged on article 50(2) (a) of the Constitution which guarantees individual freedoms under the bill of rights, particularly, the aspect of innocence until proven guilty. It cannot be gainsaid that this burden of proof rests on the State and does not shift to the Accused.
15)English case law is also replete with decisions which elucidated this standard of proof in a criminal case. Lord Denning in the case of Miller v Minister of Pensions [1942] AC stated as follows: -
16)The degree of proof in criminal cases was properly established in the classicus English case of Woolmington v DPP 1935 A C 462. Similarly, in Bakare v State 1985 2NWLR, Lord Oputa of the supreme court of Nigeria adopted the principle as follows at page 465: -
17)Where there is doubt of any kind in a criminal matter, and evidence which would likely advance the case of the prosecution is not adduced, the effect of such an occurrence would go to the benefit of an accused person, in this case, the appellant.
18)From the foregoing analysis, I find and hold that the conviction and sentence imposed on appellant were unsafe. Accordingly, the conviction is quashed and sentence set aside. Unless otherwise lawfully held, it is hereby ordered that appellant shall be set at liberty forthwith.
DELIVERED AT MERU THIS 13 TH DAY OF OCTOBER 2022WAMAE. T. W. CHEREREJUDGE In the presence ofCourt Assistant - KinotiAppellant - Present in personFor the State - Ms. Mwaniki (PPC)
