REPUBLIC OF KENYA. IN THE HIGH COURT OF KENYA AT KITALE. CRIMINAL APPEAL NO. 80 OF 2010. EKIRU EKAI ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT. VERSUS REPUBLIC ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT. (Being an appeal from the original conviction and sentence by T. Nzioki – SRM in Criminal Case No. 3 of 2006 delivered on 27 th January, 2010 at Lodwar) J U D G M E N T. 1. The appellant, EKIRU EKAI was charged with the offence of gang rape contrary to section 10 of the Sexual Offences Act 2006. The information of the charge stated that on the 17th day of January, 2009 in Turkana North within Rift Valley Province, in association, intentionally and unlawfully caused penetration of genital organs of N.L, without her consent. The appellant pleaded not guilty to the charge and was convicted and sentenced to thirty (30) years in prison. 2. Being aggrieved by the conviction and sentence, the appellant has appealed, he relied on the following grounds of the appeal. (1) THAT, the learned trial magistrate erred in law and facts when he failed to consider that the medical report was not supporting the alleged offence. (2) THAT, the learned trial magistrate erred in law and facts when he failed to note the contradiction and inconsistence of evidence which was adduced before the court of law. (3) THAT, the learned trial magistrate erred in law and facts when he convicted I the appellant and yet I was not examined by any medical expert to prove the crime. (4) THAT, the learned trail magistrate erred in law and facts by arriving to his judgment yet there was no exhibit, including the inner pants of the complainant produced before the court of law. The appellant also put in written submissions and contended that there were contradictions in the evidence with regard to the date that the offence was committed, the nature of the injuries and the presence of semen. That the court did not consider the motive and that the circumstances surrounding the arrest were not proper. That the appellant was also not properly identified. The accused person also put in written submissions and the gist of the submissions is that there were contradictions in the evidence as adduced by the prosecution with regard to dates, that the medical report was inconclusive and that the appellant was not properly identified. That he was held in custody for more than 24 hours. The state opposed the appeal on both conviction and sentence and supported the conviction that the accused had been jointly charged with a sexual offence with another who passed on. That the evidence as adduced and upon which the conviction was based was sufficient. That the offence is serious and that the sentence was reasonable. The magistrate convicted the appellant and based his conviction on the fact that the complainant was consistent in her evidence and that her evidence, that she recognized the appellant and the other person who passed on was credible. That she subsequently led her father to the appellant’s manyatta. This being a first appeal, this court has a duty to re-appraise the evidence, subject it to exhaustive examination and reach an own findings. However, the court appreciate that the trial Magistrate had the advantage of seeing and hearing the witnesses. The court further appreciate that because of that advantage, the learned trial magistrate is best equipped to assess the credibility of the witnesses and that it is a principle of law that an appellate court should not interfere with those findings by the trial court which are based on the credibility of the witnesses unless no reasonable tribunal could have made such findings or it is shown that there existed errors of law (see Republic vs. Oyier [1985] KLR 353 The prosecution called 4 witnesses, the complainant, her father, the clinical officer, the arresting and the investigating officers. The evidence as adduced was that, the complainant had gone to fetch water when the appellant and another person who passed on in prison pounced on her
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and raped her severally in turns. That the appellant and his co- appellant who passed on were the complainant’s neighbors. That the complainant reported the matter to her father and that the accused persons were subsequently arrested and charged. The learned magistrate convicted the appellant in the backdrop of the above evidence. That the Dr established that there was forceful penetration. That sand was put in the complainant’s mouth to ensure that she does not scream. In his evidence the accused person stated that he was apprehended at a scene where boda-boda riders were being arrested. He denied any involvement in the commission of the offence. Was failure to arraign him in court on time raised at the submission stage in his appeal render the conviction invalid? Did the trial magistrate error in law and facts when he failed to consider that the medical report, failed to note the contradiction and inconsistence of evidence, failing to observe the fact that accused person was not examined by the Doctor and there being no exhibit that was produced. To be considered are the issues as to whether the conviction was safe given the evidence that was available particular so with regard to recognition. The complainant who was the key and only eye witness given the peculiars nature of the offence, stated that the appellant and another accosted her as she walked from the place where she had fetched water. That she was accosted by the two assailants whom she identifies as the appellant and the other who passed on. Going through her examination in chief and cross- examination as recorded by the learned trial magistrate, her account of the events remained the consistent. The charge was amended after the trial had commenced and the first witness was yet to be cross- examined. The accused persons then were asked to plead to the new charge. Therefore no undue disadvantage was occasioned on the accused person. The accused person was arrested on the 17th of January and in this particular file was arraigned in court on the 29 th of January 2011. This is a human right issue and may be raised at any stage during the pendency of the case. Raising it at the appeal level at the submission stage is late in the day as it does not form the grounds of appeal and those who arrested him and arraigned him late on whom the constitution places the onus of offering an explanation for the delay have no opportunity to explain. This therefore can not be determined by this court and in this forum not all is lost, as the appellant has the forum of seeking for damages for wrongful confinement. With regard to the medical report the trial magistrate did consider it on page 3 of his judgment, the 2 nd paragraph. The learned magistrate stated that; “The medical evidence by p.w3 supports the evidence of the complainant that she has sexual contact and penetration which I find to be a vital element to the charge of gang rape contrary to section 10 of the sexual offences act” The medical report was therefore considered and a finding made over the same. The said finding was not frivolous as it was made on the basis of sound evidence that established that there was penetration. In this case there were no inconsistencies that went to the core of the case to warrant rendering the conviction baseless. Failure to examine the suspect by the Doctor given the fact that the arrest was not made immediately the incident occurs, is not fatal to the case. The account as given by P.W1 and her father indicate how they went to the police to report and at one point they were told to go and bring the remaining suspect by themselves. The arrest was therefore not done under the most optimal of the situations. It would have been desirable to produce any exhibits if they were available but this did not render the evidence insufficient in any material way. There was evidence of recognition in this case. The distinction between the evidence of identification and recognition is as set out in the case of Siro Ole Giteya vs. Republic (unreported in KAVETA AND OTHERS V REPUBLIC C.A. NUMBER 65 OF 1986 (UNREPORTED), the court of appeal held: “……. Where evidence is based on identification the court should closely examine the circumstances in which the identification by each witness came to be made……” the circumstances as described by the the witness P.W1 were well detailed and indicated that she was clearly able to identify her assaillants. The same is free from the possibility of any error. It was on the basis of the frogoing that the court finds the convict safe. This is because there was sufficient evidence and the learned magistrate addressed all issues raised. This court therefore will uphold the conviction. The sentence too is reasonable given the way the offence was committed and there is no justification in interfereing with the same. READ, DATED & SIGNED IN THE OPEN COURT THIS 11TH DAY OF NOVEMBER 2011 S.M. MUKETI JUDGE
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