REPUBLIC OF KENYA IN THE HIGH COURT OF KENYAAT NANYUKI CRIMINAL APPEAL NO. 102 OF 2016 GEOFFREY LOLMUNYEI.........................APPELLANT Versus REPUBLIC.............................................RESPONDENT (Being an appeal from the original conviction and sentence by Hon C N Ndegwa. Principal Magistrate dated 15th March 2016 in Maralal Principal Magistrate Court Criminal Case No. 102 of 2016) JUDGMENT 1. GEOFFREY LOLMUNYEIwas charged before the Principal Magistrate’s Court Maralal with three counts. The trial court only convicted him of the charge on the 1st count that is the offence of gang rape contrary to Section 10 of the Sexual offences Act No. 3 of 2007. He was sentenced to 20 years imprisonment. 2. He has presented this appeal against conviction and sentence. This is the first appellant court. As such the appellant in entitled to this court’s own consideration and view of the evidence and its own decision (see KARIUKI KARANJA – V- REPUBLIC [1986] KLR 190. 3. LL a 21 year old girl was on 18 th August, 2011 outside a bar called [particulars withheld]. While there three men and the appellant went to where she was. Later the appellant departed. The other three men forcefully took her to a gulley where they found the appellant. The appellant removed his knife from his pocket placed it on LL‘s cheek and ordered her to remove her clothes. The appellant removed her biker and underpants. Appellant then raped her severally. She later went to hospital. 4. On being cross examined LL stated that she had known the appellant for several years. She knew him by name. She further stated in response to appellant’s question. “I never at any one time imagine that you would rape me since I knew all of you. (appellant) paid the people you were with to bring me to you”. You 5. P C Polycap Odhiambo on the subject night at 11.20pm he was walking towards Wamba Police Station when he noticed a group of three men standing next to a lady who was crying. He said he heard the lady shout that she would rather die than be raped. One of them said that he had done nothing but that he had been given money by the appellant. The appellant who was there was well known to the police officer since he used to repair vehicles at the police station. The police officer notice that the appellant was tightening his belt. Later the officer and LL went to hospital.
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6. The clinical officer who examined LL found that her vaginal surface was wide open and had lacerations. She had whitish mucus secretion and high vagina swab revealed dead spermatozoa. 7. Section 10 of Sexual Offence Act provides: 10. Any person commits the offence of rape or defilement under this Act in association with others is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less fifteen years but which may be enhanced to imprisonment for life. 8. Rape iscommitted ifone intentionally and unlawfully commits an act which causes penetration with their genital organs, where the other person does no consent or the consent is obtained by force. See Section 3 of the Sexual Offences Act. 9. In this case prosecution proved that there was penetration and that there was lack of consent. Section 42 of Sexual Offences Act provides: “For the purpose of this act, a person consents if he or she agree by choice, and has the freedom and capacity to make that choice”. It is clear as per the evidence before the trial court that LL was forcibly taken by three men to the appellant who then proceeded to rape her. In my view therefore prosecution proved rape. 10. The question is was it gang rape. Section 10 of the Sexual Offences Act, reproduced above, talks of a rape done “in association with other”to qualify to be gang rape. Association with others can mean acting jointly, having common purpose or interest. In this case evidence of LL and which was corroborated by the police officer was that the appellant paid the three men who forcibly took LL to the appellant. It is clear from that they acted jointly and were having a common purpose of rape of LL. It is clear the prosecution proved gang rape. 11. Appellant defence before the trial court attributed the charge he faced to grudge that P C Odhiambo had against him. If that is true, and on examination of the evidence it looks unlikely, why then did LL implicate him in the offence. That defence is therefore rejected. 12. Appellant raised a ground that he was not well identified. That submission is wrong. LL gave the name of the appellant. Further in course of the rape both of them were in very close encounter, thereby ensuring that LL’s recognition of the appellant was accurate. 13. On the whole the prosecution proved its case and the required standard and the trial court rightly convicted the appellant of the offence of gang rape. 14. On sentence Section 10 provides for sentence of not less than 15 years and which can be enhanced to life. The appellant was sentenced to 20 years. That sentence does not attract interference by this court. It follows that appeal against sentence is also declined. 15. In the end the appeal against conviction and sentence is dismissed. The trial court’s conviction is upheld and the sentence is confirmed. Dated and Delivered at Nanyuki this 4th October 2017 MARY KASANGO JUDGE Coram Before Justice Mary Kasango
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Court Assistant: Njue/Mariastella Accused: Geoffrey Lolmunyei For state: ……………………………… Language ………………………………… COURT Judgment delivered in open court MARY KASANGO JUDGE
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