REPUBLIC OF KENYA IN THE HIGH COURT AT KAKAMEGA CRIMINAL APPEAL NO. 61 OF 2016 BETWEEN ANDREW SHISAINA.................APPELLANT AND REPUBLIC..............................RESPONDENT (Being an appeal from the original conviction and sentence of Hon. Nabibya, SRM dated 18th May 2016 at Senior Resident Magistrate’s Court at Butali in Criminal Case No. 804 of 2014) JUDGMENT 1. The appellant, ANDREW SHISAINA, and his co-accused were charged with the offence of gang defilement contrary to section 10 of the Sexual Offences Act. The particulars were that on 24th November 2014 at Chevaiywa Village, Chemuche Sub-location, Kakamega North District of Kakamega County, the appellant and jointly with his co-accused, intentionally and unlawfully caused his penis to penetrate the vagina of ES, a child aged 17 years. The appellant was convicted and sentence to serve 20 years’ imprisonment. He now appeals against conviction and sentence. 2. The thrust of the appellant’s appeal is that the prosecution failed to prove its case beyond reasonable doubt. He submits that the evidence against him was insufficient and the medical evidence was inconclusive. He further submits that his defence was not properly evaluated. The respondent, through written submissions, opposed the appeal and contended that the offence was proved beyond reasonable doubt and the sentence meted was lawful. 3. This being a first appeal, it is the duty of this court to re-evaluate the evidence adduced so as to reach its own independent conclusion as to whether or not to uphold the appellant’s conviction bearing in mind that it neither heard not saw the witnesses testify (see Njoroge v Republic [1987] KLR 19). 4. The evidence adduced before the trial court was as follows. The child (PW 1) testified that she was a 17 years’ secondary school student. On the morning of 24th November 2014 at about 6.00 am, as she was headed for a ceremony in the neighbourhood, she met the appellant who told her that he was looking for her. As he pulled her, she left him with her jumper. As she was trying to find help, she met the appellant and his co-accused again. She asked for her jumper and the appellant told her to get it in the sugarcane plantation. He pulled her into the sugarcane plantation and overpowered her as she struggled to get free. The co-accused held her mouth and as she tried to scream, the appellant proceeded to defile her. Thereafter, the assailants ran away. PW 1 further testified that she met two people to whom she narrated her ordeal. They told her to go home and inform her mother (PW 2).
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5. PW 2 recalled that on that morning, PW 1 had woken up with the other children and done household chores. When she came back from milking the cows, PW 1 had already left. Later that morning her son informed her that PW 1 had been sexually assaulted. PW 2 went to the road to find out what happened and after a few minutes saw PW 1 with torn and soiled clothes. When she PW 2, PW 1 ran away but was brought home at by some people. PW 1 narrated to PW 2 what happened. PW 2 asked her to remove her clothes which she kept in a polythene bag and they proceeded to report the matter to the police. After being issued with a P3 form, she took PW 1 to the hospital. 6. PW 5, the investigating officer, testified that PW 1 accompanied by PW 2 came to the police station to report the incident on that morning. He issued the P3 form and referred them to Malava District Hospital where PW 1 was examined by PW 3, a clinical officer, on that same day. PW 3 told the court that PW 1 complained that she had been defiled by a person known to her. He noted that her hymen was open and a high vaginal swab revealed epithelial cells, blood pus cells and spermatozoa which were indicative of sexual intercourse. 7. PW 5 also organized for the arrest of the suspects. PW 4, an Assistant Chief, testified that when he went to arrest the appellant, he escaped. The appellant was later arrested on 3 rd October 2015 in Webuye and later arraigned in court. 8. In his unsworn statement, the appellant gave an account of his arrest while he was working as cobbler in Webuye. He stated that until he was arraigned in court, he did not know why he was being charged. As regards the events of 24th November 2014, the appellant stated that he was staying in Webuye at the material time. He told the court that he was charged because of an existing land dispute. 9. Gang defilement is defined under section 10 of the Sexual Offences Act which states; Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life. 10. In order to prove defilement, the prosecution must show that the accused did an act that amounted to penetration of a child. “Penetration” under section 2 of the Act means, “the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 11. I have evaluated the evidence presented before the subordinate court and find that the prosecution proved the elements of defilement. PW 1 narrated how the appellant and his co-accused forcefully pulled her into the sugarcane plantation. The appellant proceeded to have sexual intercourse with her while the co-accused restrained her. Her testimony was clear and direct and it was not shaken on crossexamination. Although, the trial magistrate recorded that she was defiled, I have no doubt that there was penetration as this fact was corroborated by the testimony and report of PW 3 who examined her and found her hymen open and the fact that she had epithelial cells and spermatozoa. 12. As regards the identity of the assailant, the testimony of PW 1 is that she knew the appellant prior to the incident and that the incident took place at about 6.00am in broad daylight. These facts and the length of interaction between PW 1 and the appellant clearly close any opportunity for mistaken identity. 13. Under the proviso to section 124 of the Evidence Act (Chapter 80 of the Laws of Kenya), the testimony of PW 1 was sufficient to form a basis for conviction without corroboration if the trial magistrate was satisfied that PW 1 was telling the truth. The trial magistrate noted that PW 1 was focused and confident. Notwithstanding this conclusion, PW 1’s testimony was further given credence by the fact that she reported the incident to her mother. Although she was hesitant to inform her mother, in crossexamination she explained that the two men she initially met assured her that her mother would not discipline her if she went home. Additionally, her soiled clothes including her torn underpants, which were produced in evidence, showed that she had been assaulted in the sugarcane plantation.
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14. Finally, the age of PW 1 was proved by production of her birth certificate which confirmed that she was 17 years old at the time of the incident. 15. Given the nature of the evidence presented by the prosecution and particularly the fact that the appellant was identified as the perpetrator, his defence was properly dismissed by the trial court as an afterthought. I also find that in light of the other evidence that implicated the appellant, it was unnecessary for the prosecution to call the two men who assisted the PW 1 after her ordeal. Section 143 of the Evidence Act is clear that the prosecution is not required to call all or any particular witnesses to prove a fact. In this case, no adverse inference can be drawn to undermine the prosecution case, as the events of that day were clearly laid out. The totality of all the evidence is that the appellant defiled PW 1. 16. The offence of gang rape requires the proof that the appellant with others persons had the common intention to commit the act of defilement. Common intention is defined in section 21 of the Penal Code (Chapter 63 of the Laws of Kenya) as follows; Where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such persons an offence is committed of such nature that its commission was a probable consequence of such purpose, each of them is deemed to have committed the offence. 17. This provision has been the subject of judicial discussion. For example, in Njoroge v Republic [1983] KLR 197, the Court of Appeal stated that: If several persons combine for an unlawful purpose and one of them in the prosecution of it kills a man, it is murder against all who are present whether they actually aided or abetted or not provided that the death was caused by the act of someone of the party in the course of his endevours to effect the common assault of the assembly …… Their common intention may be inferred from their presence, their actions and the omission of either of them to disassociated himself from the assault. 18. The prosecution proved through the testimony of PW 1 that the appellant and his co-accused acted in concert. The appellant committed the act of penetration while his co-accused held her. I therefore find that the appellant and his co-accused had a common intention and that therefore the offence of gang defilement was duly proved. 19. The minimum sentence prescribed under section 10 of the Sexual Offences Act is a term of not less than 15 years’ imprisonment which may be enhanced to life imprisonment. It is not apparent from the sentencing notes of the trial magistrate why the minimum sentence was enhanced. I therefore reduce the sentence to 15 years’ imprisonment. 20. The conviction is affirmed. The sentence imposed is set aside and substituted with one of 15 years’ imprisonment to run from the date of conviction. 21. Save for the sentence, the appeal is dismissed. DATED and DELIVERED at KAKAMEGA this 1st day of September 2017. D.S. MAJANJA JUDGE Appellant in person. Mr Ng’etich, Senior Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions for the respondent
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