|Criminal Appeal 257 of 2009
|Benjamin Mbugua Gitau v Republic
|25 Mar 2011
|Court of Appeal at Eldoret
|Riaga Samuel Cornelius Omolo, Alnashir Ramazanali Magan Visram, Philip Nyamu Waki
|Benjamin Mbugua Gitau v Republic  eKLR
|An appeal from a judgment of the High Court of Kenya at Eldoret (Mwilu, J.) dated 29th October, 2009 in H.C.CR.A. NO. 94 OF 2007
|Individual v Government
|History Docket No:
|94 OF 2007
|Philomena Mbete Mwilu
Criminal practice and procedure – defilement of a minor aged thirteen years – second appeal against conviction and sentence to twenty years imprisonment – essence of penetration in an offence of defilement – duty of the first appellate court to sufficiently re-evaluate the evidence – whether the evidence adduced during the trial was sufficient to sustain the conviction.
Evidence – identification evidence – single identifying witness - claim by the appellant that the persons who apprehended him were not called to testify - duty of the first appellate court to re-evaluate evidence – whether the evidence of identification and recognition was sufficient to sustain the conviction – Sexual Offences Act No. 3 of 2006 sections 8(1) 8(3).
|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
CRIMINAL APPEAL NO. 257 OF 2009
(An appeal from a judgment of the High Court of Kenya at Eldoret (Mwilu, J.) dated 29th October, 2009
H.C.CR.A. NO. 94 OF 2007)
JUDGMENT OF THE COURT
1) The conviction of the appellant was based on misapprehension of the evidence on record and therefore the offence was not proved as charged.
What were the concurrent findings of fact made by the two courts below?
T.W.K (PW1) was a 13 year-old minor in standard 6 at a Primary School in Eldoret. She lived with her parents at M[....], within the same town. Late in the afternoon of 26th November, 2006, T, accompanied by two of her friends, M. W. K (PW5) and one F, attended a funeral in the neighbourhood. At about 7.30 p.m., T and M escorted F back to her home to collect a cardigan. On reaching F’s home, the two girls waited outside the gate. Shortly thereafter some two men came along and found them. It was the appellant and one Mugo, both of whom were well known to the girls as they were from the same neighbourhood. Both men grabbed T and started dragging her towards a forest nearby. M tried to protest and pull T back but Mugo became furious and M fled. She went to call for help. In the meantime, the appellant stuck some socks in T’s mouth to silence her and the two men managed to drag her into the bush where she was forced to lie on her back. They tore up her skirt and panties and Mugo lay on top of her as the appellant held her down by the hands. Mugo unzipped his trousers and placed his penis into her vagina. When he finished, the appellant took his turn and defiled her too as Mugo held her down. Fortunately some two boys one Waria and one Njuguna, came along and managed to apprehend Mugo and the appellant. A Community police agent, Ali Odhiambo (PW3) was summoned and headed to the scene. T’s mother A. N. M (PW2) also arrived at the scene after receiving a distress call regarding her daughter. Both Odhiambo and N found the two men, T with her torn and soiled clothing, and M who had returned to the scene with other members of the public. T said she had been raped by the two men. Odhiambo called Eldoret Police Station and started to escort the two men towards the station but along the way, Mugo bolted out and escaped. He remained at large throughout the trial of the appellant. But the appellant was re-arrested and Pc. Beatrice Lagat (PW6) commenced investigations. T was taken to Moi Teaching and Referral Hospital where she was examined and treated. Her P3 form was completed by Dr. Paul Rono (PW4) who confirmed that T had a tear on the labia majora and was bleeding on her private parts. She also had spermatozoa. In his opinion T had been defiled.
After considering the evidence of all six prosecution witnesses and that of the appellant, the trial magistrate was in no doubt that T and M were credible and truthful witnesses. So was T’s mother, Odhiambo and Dr. Rono whose cumulative evidence was supportive of the charge laid. The court dismissed the defence put forward by the appellant as an afterthought. The superior court, apart from dispensing with various legal issues raised by the appellant in his first appeal, also re-evaluated the evidence and came to the same conclusion as the trial court. The court stated in part: -
The learned Judge also dismissed the appellant’s contention that there was no corroboration of the complainant’s evidence stating that corroboration was not a requirement of the law as it was removed by the proviso to section 124 of the Evidence Act, and even if there was such requirement, it was declared unconstitutional in the case of Mukungu v R Cr. App. No. 277/02, as it would be discriminatory of women and girls. At all events the court found, there was corroboration from T’s mother (PW2), M (PW5) and Dr. Rono (PW6).
In responding to that ground of appeal learned Senior Deputy Prosecution counsel, Mr. Oluoch, submitted that although the offence was committed by two persons, they could not be charged jointly therewith as there cannot be a joint charge of rape or defilement. As for the use of DNA to identify whether the spermatozoa came from the appellant, Mr. Oluoch submitted that it was unnecessary since the essence of the offence was penetration of the female organ and not ejaculation. On the issue of identification Mr. Oluoch submitted that the appellant was known to T and M and it was recognition rather than identification of a stranger which strengthened the prosecution case. The appellant was also found at the scene by Njeri and Odhiambo who also saw the distressed state of the complainant. There was no need therefore to call further evidence from the two boys who apprehended the appellant and his accomplice before handing them over to Odhiambo.
We also agree with Mr. Oluoch that there was no necessity of DNA tests as penetration, which is the main element of the offence, was proved. There was also no prejudice caused to the appellant by failing to charge him with “gang rape” under section 10 as opposed to defilement under section 8 (1) as both are equally grave and carry heavy penalties. That ground appeal is lacking in merit and we reject it.
“The extent and manner in which evaluation may be done depends on the circumstances of each case and the style used by the first Appellate Court. In this regard, I shall refer to what this court said in two cases. In Sembuya v Alports Services Uganda Limited  LLR 109 (SCU), Tsekooko JSC said at 11:
In Odongo and another v Bonge Supreme Court Uganda Civil Appeal 10 of 1987 (UR), ODOKI JSC (as he then was) said: “While the length of the analysis may be indicative of a comprehensive evaluation of evidence, nevertheless the test of adequacy remains a question of substance.”
The upshot is that this appeal has no merit and we order that it be and is hereby dismissed.
Dated and delivered at Eldoret this 25th day of March, 2011.
JUDGE OF APPEAL
JUDGE OF APPEAL
JUDGE OF APPEAL
I certify that this is a true copy of the original.