REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII CORAM: MAJANJA J. CRIMINAL APPEAL NO. 32 OF 2018 MESHACK ORINA MATIBE ....................APPELLANT VERSUS REPUBLIC ................................................RESPONDENT (Appeal from the original conviction and sentence of Hon. S.K Onjoro – SRM dated 31 st May 2018 at the Chief Magistrate’s Court at Kisii in Criminal Case No. 1060 of 2016) JUDGMENT 1. The appellant, MESHACK ORINA MATIBE, was charged and convicted of the offence of rape contrary to section 3(1) (a) (b) (3) of the Sexual Offences Act (‘the Act’). The particulars of the offence were that on 24 th March 2016 within Kisii County, he intentionally and unlawfully caused his penis to penetrate the vagina of CK without her consent. 2. The appellant sentenced to serve fifteen (15) years imprisonment. He now appeals against conviction and sentence. He relied on his petition of appeal and written submissions. The thrust of his appeal was that the prosecution failed to prove its case beyond reasonable doubt. 3. As this is a first appeal, I am required to re-evaluate the entire evidence and reach an independent conclusion as to whether I should uphold the conviction. I must also bear in mind that I neither saw nor heard the witnesses testify in order to make an assessment on their demeanour (see Okeno v. Republic [1972] EA 32). 4. The prosecution called four witnesses while the appellant gave sworn testimony. The complainant (PW 2) testified that on 14 th March 2016 at about 8.00pm she had gone to collect a debt from the appellant. She explained what took place as follows; It was raining and on my back I heard Meshack (points at accused) calling me and running after me. Meshack grabbed me and tore my clothes and started raping me. He removed all my clothes and put me on the ground. He inserted his penis into my vagina and I started screaming. He inserted his penis into my vagina while lying on top of me. He had a knife and my screams attracted people who helped me. 5. After her ordeal, she was rescued by other people who took her to her mother (PW 3). PW 3 recalled on the material note, she was called by the Chief to go and take PW 2 to the hospital. She took her to Riana on that night but she was not treated or examined. Thereafter they went to report the incident at Gesonso Police Station. She was advised to take PW 1 to Iyabe Hospital where she was treated. 6. A clinical officer at Iyabe District Hospital, PW 1, examined PW 2 on 25 th March 2016, prepared and signed the P3 Medical report. He noted that the clothes were in good state and her inner clothing had whitish spots adjacent to the genitalia and were dirty. She had no injuries on the head, abdomen or limbs. The genitalia was in good state with no tears, the hymen was missing and pubic hair evenly disturbed. She had whitish deposits in the cervix and the vaginal walls had a foul smell. PW 1 concluded that PW 3 was sexually assaulted but had no physical injuries. 7. The investigating officer (PW 4) recalled that according to the Occurrence Book PW 2 and PW 3 came to report the incident of the rape by the appellant. He testified that the appellant was arrested by community policing members and brought to the police station. He testified that he did not record the statements of the two people who rescued PW 3 as they came from the area and had been threatened. 8. In his sworn defence, the appellant denied the charge. He testified that PW 3 was her cousin and PW 2 her aunt. He told the court that he used to sell drugs and alcohol for PW 2 but decided to stop. He explained that he was arrested on the night of 25 th March 2016 and taken to the police station where he found PW 2 who demanded Kshs. 6000/= from him and that he comes back to work for her but he refused. He
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told the court that the charges against him were fabricated. 9. The issue for resolution in this appeal is whether the appellant caused an act of penetration without the consent of the complainant. It is not in doubt the appellant and PW 3 were not strangers, a fact acknowledged by the appellant in his own defence. 10. PW 3 gave clear testimony on how the appellant sexually assaulted her by penetrating her vagina without her consent. Under the proviso to section 124 of the Evidence Act (Chapter 80 of the Laws of Kenya), the evidence of the victim or complainant in sexual offences does not require corroboration for the conviction to be sustained if for reasons to be recorded, the trial magistrate believes the complainant or victim to be telling the truth. In this case the trial magistrate expressed the following view; The testimony of the complainant was clear and unshaken during cross-examination. It was duly corroborated. 11. PW 2’s testimony was corroborated by the medical evidence and the fact that the incident was reported immediately and the appellant arrested thereafter tends to support PW 2’s testimony. 12. The appellant’s defence was that there was a grudge. The nature of the grudge was not put to PW 2 and PW 3 and was therefore an afterthought. 13. In his submissions, the appellant raised the issue of the age of the complainant. Since an act of penetration with a child is termed defilement under section 8 of the Sexual Offences Act, Section 3 of the Act covers a similar act with an adult save that it includes the element of lack of consent. The appellant testified that she was an adult and failure to prove her age was not prejudicial to the appellant as proof that she was a child would have led to a higher sentence upon conviction. 14. Another issue that was raised was whether the failure to call two witnesses who rescued PW 2 was fatal to the prosecution case. It is not necessary to call all or any number of witnesses to prove a particular fact, although failure to call a particular witness would lead the court to make an adverse influence if the witness was necessary. In this case, PW 4 explained that the two witnesses refused to come forward as they were threatened. In my view, their testimony would be merely corroborative and would only add to the credible testimony of PW 2. 15. The mandatory minimum sentence for the offence of rape contrary to section 3(3) of the Act is not less than ten (10) years imprisonment but which may be enhanced to life imprisonment. In this case, the trial magistrate did not explain why the minimum sentence was enhanced by five years. I therefore reduce the sentence to ten (10) years imprisonment. 16. I affirm the conviction and reduce the sentence to ten (10) years imprisonment to run from the date of the sentence. Dated and delivered at Kisii this 5th day of October, 2018. D.S MAJANJA JUDGE Mr. Otieno, Senior Prosecution Counsel, instructed by Office of Director of Prosecutions for the respondent. Appellant in person.
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