High Court 3946 of 2017

submitted that the sentence is legal and lenient. She submitted that section 4 of the sexual offences Act provide a minimum sentence of 5 years that can be enhance to life imprisonment. On evidence of a single witness she submitted that under section 143 of the evidence Act it is clear that no number of witnesses is required to prove a fact and that section 124 of the evidence Act provide that in sexual offences the court can convict on evidence of complainant alone. She submitted that evidence of the complainant require no corroboration and that evidence of the 3 witnesses called in this case was cogent and consistent. As concern appellant’s defence she submitted court could not believe how the complainant could approach the appellant for sex and tear her own clothes. She submitted that the court found the complainant to be telling the truth. She said that his evidence was considered but only that it did not shake prosecution case. She finally submitted that the appellant’s mitigation was considered and minimum sentence of 5 years imposed. She concluded that the case was proved beyond reasonable doubt and the sentence imposed was legal. This being the first appellate court the appellant expects the evidence adduced before the trial court to be reevaluated and independent decision reached as held in the case of OKENO VS REPUBLIC [1972] EA 32 where it was stated as follows:“The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v. Republic [1957] EA 570.) It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, (See Peters v. Sunday Post, [1958] EA 424.)” Pw1 testified that on 20/6/2015 at 3 pm she was walking home. On reaching kieni she found a man lying on the grass. She said that she knew the man by face. She asked why he was lying on grass and the man told her that he was also going to the direction she was going. They walked together then suddenly the man held her by the shoulder. The complainant asked him why he was holding her. She said the man unzipped his trouser then asked her whether she was fearing and what it is that he could not do to her. He grabbed her and tried to hold her legs to knock her down the floor. She fell down. She screamed for help as the appellant tore her skirt and undress her. She said he knocked her down to the grass and lay on her stomach. She kicked him off. He fell down and grabbed her shoulder as she fell backward. He removed her blouse. Complainant said that all this time as the struggle ensued she was screaming. She started running away as the appellant chased her. She showed court a torn skirt. Complainant said when the appellant saw a young man he run away. She testified that the young man pursued him and managed to arrest him at the village elder’s gate. The village elder called the police officers who rearrested the appellant. In cross examination the complainant denied having forced the appellant to have sex with him. Pw2 testified that on 20/6/2015 he was walking through a foot path when he heard screams. He run towards where screams were emanating from and found the complainant half naked .He said she was wearing a torn skirt and a bra. He said the complainant told him somebody wanted to rape her and pointed at the direction he had taken.pw2 said he saw someone running away. He confirmed that he chased him and got up with him. He confirmed that the village elder called police and he was taken to Naro Moru police station. He identified the appellant and the torn skirt in court.In cross examination pw2 said he got up with the appellant within a distance of 200 meters.pw3 produced the torn skirt in court as exhibit. He confirmed that the appellant was rearrested by members of public who include pw2. The appellant adduced sworn statement. He said that on 20th June 2016 he was at his place of work when a customer arrived and made sexual advances to him. He said he refused and told his colleagues then they parted ways. He denied having committed the offence. I have considered evidence on record. The appellant admitted having had an encounter with the complainant on 20th June 2015 though he says it was at his place of work. The complainant proved evidence of struggle with the appellant she talked of a torn skirt and being half naked after the struggle. This was confirmed by pw2 who responded to her screams.pw2 confirmed seeing the appellant running

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from the scene. If appellant was not involved in the struggle with the complainant then what prompted him to run. Pw2 chased and got up with him. There is no mention of any obstruction during the chase. The chase as per his evidence was short distance of 200 meters. The appellant was rearrested by police from pw2 and other members of public as per pw3’s evidence. From the foregoing there is therefore no doubt that the right person was arrested. Appellant said that the court relied on evidence of a single witness to convict. Section 124 of Evidence Act provide as follows:“…provided that where in a criminal case involving sexual offence the only witness is that of the alleged victim of the offence, the court shall receive evidence of the alleged victim and proceed to convict the accused person if, for reason to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” Record clearly show that the court did not rely on single witness. The complainant’s evidence was corroborated by pw2’s evidence who arrived at the scene immediately and saw the appellant running. He confirmed that the complainant’s skirt which was produced by pw3 was torn and she was wearing a bra. Why would the appellant be running from the scene if he had not attempted to commit an offence? No other person was mentioned as being at the scene at the material time. There was no break in the chase until the appellant was arrested.pw3 confirmed rearrest of appellant from pw2 and other members of public. The above section allow court to rely on evidence of a single witness in such an offence and it would have been proper to rely on complainant’s evidence if court was satisfied that she was telling the truth but her evidence in this case was however corroborated. Appellant alleged his defence was not considered. He talked of presence of his colleagues at the work place where he alleges complainant went to make sexual advances. He said he told his colleagues. If he is indeed saying the truth, why didn’t he avail his colleagues to confirm that? This clearly that his allegations are not true. On sentence, section 4 of sexual offences Act under which the appellant was convicted is coached in mandatory terms. It provide that a person convicted shall be serve imprisonment for a term not less than 5 years but which may be enhanced to life imprisonment. It is evident that the court was lenient to the appellant by imposing the minimum sentence opting not to enhance to life imprisonment. The sentence is therefore legal. From the foregoing I see no merit in the appeal and dismiss accordingly. Dated, signed and delivered at Nyeri this 19th day of July 2017. RACHEL NGETICH ……………………… HIGH COURT JUDGE

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