Fredrick Wadia Masanju v Republic

At the close of the prosecution case the appellant was found to have a case to answer and was placed onto his defence. He opted to give an unsworn defence in which he denied having raped the complainant at all. On 7th March, 2012 the learned trial magistrate delivered his judgment in which he convicted the appellant on the main charge of rape and thereafter sentenced him to serve ten (10) years imprisonment. Being aggrieved the appellant filed this appeal. The appellant who was in person during this appeal chose to rely upon his written submissions which had been duly filed in court. Ms. MWAURA learned state counsel made oral submissions opposing the appeal. I have carefully perused the grounds of appeal filed by the appellant. He relies basically upon the following grounds: • Insufficiency of evidence • Inconsistencies in the prosecution case From the evidence there can be no doubt that the appellant and PW1 did meet on the night of 20th January, 2011. In his defence the appellant confirms the complainant’s evidence that he was a taxi driver and that she was one of his regular clients. The appellant further confirms that on the material day he did pick the complainant at her request and drove her to her place of work at Silent Guest House. The two were well known to each other. PW1 knew the appellant as Fred. They were alone together in the vehicle. There can be no possibility of a mistaken identity. The complainant claims that on the way to drop her, the appellant diverted to a bushy deserted area where he proceed to rape her. In his defence the appellant denies this. He insists that he merely picked the complainant dropped her at her place of work then he went back home and slept. In other words the appellant claims that no sexual intercourse took place between himself and the complainant on the material night. However, the complainant on her part insists that the appellant raped her in his car. Sexual offences are normally committed in private thus there is unlikely to have been any witness to the assault. It is persuasive to note that immediately upon arriving at work, PW1 sought permission to go to hospital and she did seek treatment that same night. Similarly PW1 did report the rape immediately to her cousin PW2 and to the police. PW1 told her cousin and police that she knew her attacker and named him as ‘Fred’. PW1 was an adult woman of sound mind. Why would she claim to have been raped and go so far as to make a report with the police if no such incident occurred? PW3 DR. CHARO WILSON was a medical officer attached to Moi Voi Hospital. He testified that he examined PW1 on the same night at about mid-night. His evidence was that: “a high vaginal swab yielded spermatozoa cells.” This was evidence that sexual activity had taken place. The evidence of the doctor corroborates the testimony of PW1. In his defence the appellant claims that the charge is the result of his enmity with some unknown person. He claims that this unknown person forced the complainant to name him as her rapist. The appellant claims that he was given this information by the complainant’s mother. Firstly the mother of PW1 did not testify to confirm or deny this. Secondly, how could the appellant claim to have been the victim of a vendetta with a person whom he does not even know? This does not make sense. Thirdly, why would the complainant who herself had no grudge against the appellant agree to be used by some mysterious unknown person to fix the appellant? This defence is clearly a pure fabrication. The fact that the appellant did not put these issues to the complainant under cross examination is further proof that this defence was a mere after thought. The appellant in his defence goes onto state that: “My investigations revealed that the complainant has a habit to put men in similar problems. I am the third person she has done that to ……………….” However, the appellant provides no evidence of this claim. He does not name any of the other men the

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complainant has allegedly falsely accused of rape and neither has he called any of these men as witnesses. The appellant makes no claim that the complainant personally held a grudge against him and had any reason to fabricate a case against him. All in all I find this defence to be totally incredible and the trial magistrate was right to dismiss the same. From the evidence it is clear that sexual activity did take place between the appellant and the complainant on the night in question. In cases of rape the crucial question is whether the sex was consensual. The fact that PW1 immediately sought treatment and made a report to the police indicates that she did not consent to sex with the appellant. If the two were lovers, they would have probably made arrangements to meet for a rendezvous, not have sex in the car on the way to work. I am satisfied that the sex was not consented to by PW1 and that the appellant forced himself upon her. Finally, I note that no samples of blood or blood typing was done to prove that the semen found inside the complainant’s vagina came from the appellant. This was remiss of the prosecution. Such testing is necessary to prove a charge of rape conclusively. For this reason I find that the trial magistrate erred in convicting the appellant on the main charge of Rape. As such I do quash that conviction. However, I am satisfied that the evidence on record sufficiently proves the alternative charge of Indecent Assault. I therefore substitute the conviction on rape with a conviction of Indecent Assault on an Adult Female contrary to section 11(A) of the Sexual Offences Act. In the circumstances the ten (10) year sentence becomes unlawful. I therefore substitute the sentence with a fine of Kshs. 30,000/= in default to serve three (3) years imprisonment. Dated and delivered in Mombasa this 4th day of February, 2014. M. ODERO JUDGE

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