Paul Gitau Gathecha v Republic

the pregnancy to hide the truth because if the baby was kept alive they would have demanded for DNA tests that could bring out the truth the girl had a long time boyfriend. 4 A summary of the prosecution case is that PW1 the complainant was born on 7th September 1999. She was a student at [particulars withheld] Youth Polytechnic when these two incidents happened. It was her evidence that on 8th November 2016 at about 3 p.m she had gone to fetch water from the tank when Raphael (the appellant) asked her to get him drinking water. He was seated in class and she took him the water. As she entered the class the Appellant pulled her and held her hands. 5 Another man called Ian entered the classroom and together with Raphael they forcefully held her and placed her on the table and Ian left. Raphael held her hands tightly from behind. The Appellant removed her clothes and underpants and proceeded to have sex with her. When he was through, he held her hands as Raphael had sex with her still on the table. She screamed for help but no one came to her rescue. 6 When they were through they left and she went to class. She never told anyone about it. In the evening she went home and did not tell her mother what had happened to her. The next day i.e. 9 th November 2016 she was feeling unwell and was asleep in class when the Appellant and Raphael came where she was. They asked her why she was not attending class. 7 When she told them she was unwell Raphael held her hands again as the Appellant raped her. She screamed so much for help. A student called M W M got into the class and witnessed what was going on. She rushed out and reported to a teacher called N K G (PW4). He summoned them in his office and they went, but she feared to report on what had happened. She later explained the incident to another teacher (J N) and her mother (PW2). 8 A report was made at Gatundu Police Station before she went to the Gatundu Hospital. In cross examination she admitted having slept with another man prior to the dates in issue. She explained that she feared telling anyone let alone PW2 because she knew she would be quarreled by the latter. 9 Her mother N N W (PW2) said she received the report of the gang rape from PW1 on 12 th November 2016 at 6.00 p.m. She went to the Polytechnic the next day and met the deputy principal who called the suspects. On being asked about the report the boys admitted having raped PW1. She took PW1 to hospital where she was examined and treated. She was found to be about one month pregnant. She explained that PW1 had not told her about it out of fear and her teacher had warned her against telling anyone. 10 PW3 Faith Mudachi is the doctor who examined PW1 on 21st November 2016. Her findings were: a broken hymen and a positive pregnancy test. She produced the P3 form as EXB4. She explained that it takes 14 days after sex for a urine test to show pregnancy. In this case it was 13 days since the date of the incident complained of. She explained this to mean PW1 must have had sex prior to the incident in issue. 11 PW4 N K G is the Principal [particulars withheld] Youth Polytechnic. He testified of receiving a report from M W M on 14th November 2016, in respect of this incident. He called PW1 who was outside his office and she denied any wrong doing. The boys were called and they too denied there having been anything sinister. He called the teacher on duty (J N) and asked him to do a follow up. 12 The next day Mr. J N called and confirmed the report of gang rape by the appellant and Raphael. Later PW1 and PW2 came to his office and explained everything and they were referred to the police station. He explained his inability to get M W M who had brought him the information. 13 PW5 Mary Kitote is the investigating officer. She received PW1 and PW2 at the Gatundu police station on 17th November 2016. PW1 reported having been gang raped by the appellant and Raphael on 8th November 2016 and 14th November 2016. That one M W M had found the Raphael raping her as the appellant held her. The said M W M reported to the Principal (PW4). On 16 th November 2016 PW1 informed Mr. J N who advised her to inform her mother to come to school the next day, which she did.

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PW1 was taken to hospital and the suspects were arrested on 18 th November 2016 and charged with the offences. 14 The appellant gave a sworn statement for his defence and called no witness. He denied the charges which he said were a fabrication. He testified that the doctor was not able to state whether it was them who had committed the offence as PW1 had been engaging in sex. He admitted having known PW1 and Raphael, as students at [particulars withheld] youth polytechnic. A DNA requested for by the defence and ordered for by the court was not done because the pregnancy aborted in February 2017. 15 When the appeal came for hearing Mr. Gitari for the appellant abandoned grounds 1 & 4 and submitted on the rest of the grounds. On ground 2 he submitted that PW1 was not a truthful witness as she first denied the rape report and later admitted it. 16 On ground 3 he submitted that failure to call M W M who allegedly witnessed the rape incident was fatal. Finally on ground 5 he submitted that when examined PW1 was found to be pregnant. Had a DNA test been done the truth would have been established. He contended that the conviction and sentence were erroneous. 17 Mr. Maatwa for the state opposed the appeal. He submitted that the ingredients were established i.e. there was recognition; penetration was proved as there was even a pregnancy which corroborated PW1’s evidence. He urged that the victim was 17 years and though she denied having ben defiled she later on admitted it. 18 It was his submissions that all crucial witnesses testified and an explanation was given for the failure to call M W M. He argued that the parties had wanted the matter withdrawn but he declined to allow it. He also referred the court to the trial magistrate’s observation at pg 11 of the record of Appeal proceedings where it is noted during cross examination of PW2 by the appellant; (pg 14 lines 18-19) “NB: Accused 1 admits committing the act although he wonders why it was stated to have been done much earlier.” 19 This is a first appeal and this court has a duty to re-evaluate and re-consider the evidence on record and arrive at its own independent conclusion. See Okeno v Republic E.A. 32, Pandya v Republic [1957] E.A 336 and Kariuki Karanja v Republic [1986] KLR 190 I have duly considered the evidence on record, grounds of appeal, and submissions by both counsel. Before I deal with the grounds I would wish to address an issue on the 2nd count. 20 The particulars indicated that the incident occurred on 14th November 2016 and it involved both the appellant and Raphael. The evidence of PW1 is key on this. In her evidence at pg 10 record of appeal she explains what happened on 8th November 2016 upto the time she went home. This is what she states from pg 10 lines 27-pg 11 lines 1-3. “then in the evening I went home when time to leave reached. At home, I did not tell my mother about it. Then on the following day while I was sleeping in class because I was feeling unwell, both Gitau and Gichungu came to me and asked why I was not attending classes and I told them I was feeling unwell. At that point Gichungu held my hands again as Gitau raped me once more.” 21 After this incident of the “the following day” PW1 does not talk of any other incident of rape or gang rape in her evidence. Since her alleged first ordeal was on 8 th November 2016, then the following day simply refers to 9th November 2016 and not 14th November 2016, as stated in the charge sheet. The doctor (PW3) and the Principal (PW3) have also talked of the date of 14 th November 2016 but this is not supported by PW1’s evidence and the records. The mother of PW1 who testified as PW2 said the daughter was reporting to her this incident on 12 th November 2016 6.00 p.m and she went to the school the following morning which was 13th November 2016.

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22 The question that begs an answer is whether the second incident of rape really occurred on the 14 th November 2016. The trial court could not convict on this second count when the victim herself talked of 9th November 2016. Had the conviction been proper the court could also not order as she did that the sentences to run concurrently. 23 These were distinct offences committed on two different dates, attracting different sentences which were to run separately (consecutively). I therefore quash the conviction on the 2 nd count and set aside the sentence of 15 years imprisonment. 24 Coming to the 1st count, I find the ingredients to be proved to be: (i) age (ii) Penetration by more than one person (iii) Identification of the appellant. 25 PW1 told the court she was born on 7 th September 1999 and was 17 years as the time she testified on 23rd February 2017. Her mother (PW2) confirmed the said age. A birth certificate produced as EXB1 confirms that PW1 was born on 7th September 1999. Although there was no issue raised touching on age the court must satisfy itself of the age of the victim for purposes of sentence in case of a conviction. 26 The calculation I have done shows that on 8th November 2016 PW1 was exactly 17 years 2 months 1 day old and not 16 years, as stated in the charge sheet. In spite of the slight differences in the age stated in the charge sheet and the actual age of PW1 the undisputed fact is that at the time of the alleged incident she was below the age of 18 years hence a minor. I therefore find that age was proved in this case. 27 On penetration of her vagina by a male organ, PW1 explained what happened to her which was repeated the next day. She was attended to on 17 th November 2016 as per the treatment notes (EXB2) from Gatundu Hospital. She was further examined by PW3 Faith Mudachi who filled the p3 forms EXB4. In her evidence PW3 only confirmed that PW1 had a broken hymen and was pregnant. She added that due to the late presentation of PW1 to the hospital there had been partial interference with the evidence e.g, by showering and passing urine. 28 The appellant’s Counsel has stressed on the issue of failure to carry out a DNA test which to him was fatal in this case. It’s important to point out at this stage that there is no evidence on record showing that PW1 got pregnant as a result of the incident of 8 th November 2016 or 9th November 2016. She had also admitted in cross examination that prior to this incident she had been sexually involved elsewhere. I therefore find that the issue of the pregnancy will not assist the appellant in this appeal. 29 It has been argued by the appellant’s Counsel that failure to call M W M who allegedly witnessed the gang rape and reported to PW4 was fatal to the prosecution case. We should remind ourselves that this is a case under the Sexual Offences Act No 3 of 2016. The complainant’s evidence is covered by the proviso to section 124 of the Evidence Act. It can be relied on to found a conviction if the court is satisfied with the said evidence. 30 Section 124 of the Evidence Act provides: Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:

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Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. 31 The Court of Appeal in the case of Erick Onyango Odeng’ v Republic (2014) eKLR held thus: “In Bukenya & Others vs Uganda (supra) the former East African Court of Appeal held that the prosecution has a duty to call all the witnesses necessary to establish the truth even though their evidence may be inconsistent; that the court itself had the duty to call any person whose evidence appears essential to be just decision of the case…. While fully in agreement with the above statement, it should be remembered that the context in which it was made is that of a case in which the evidence called is barely adequate. In the present case, the proviso to section 124 of the Evidence Act (Cap 80) which provides that, in the absence of any requirement by provision of law, no particular number of witnesses shall be required for the proof of any fact. In this appeal, it is not clear to us what value the evidence of Violet would have added to the evidence of PW2 which the court found trustworthy as well as the medical evidence. In our opinion Violet would have been a peripheral witness as she was said to merely have happened by when the appellant was with PW2 on a different occasion.” 32 My finding is therefore that M W M’s evidence would only have added value to the evidence in respect to the charge in the second count which I have already dismissed. As far as the incident of 8 th November 2016 there is no evidence of any other persons who witnessed it. 33 I now move to deal with the evidence of PW1. She has been described by the appellant as being an untruthful witness. PW1 had not reported this incident until the second one occurred. Rape or defilement is not a pleasant experience. When it comes to gang rape it’s only the victim who may be able to explain the ordeal. 34 In her evidence PW1 told the court that she feared speaking out because of how her mother (PW2) would react to it. That was all that kept her from sharing her ordeal with her teachers and fellow students. In his defence the appellant was very brief and stated that the charges were a fabrication. Further that the doctor was unable to confirm that it’s them who did it because PW1 was engaging in sex elsewhere. 35 There was no evidence adduced to show any reason why PW1 would fabricate these charges against the appellant. They were in the same institution and they had not collided before. In her judgment at pg 7 lines 5-7 the learned trial magistrate states “ The court did similarly note the demeanor of the complainant who came out strongly as a truthful person which thus went further into adding credence to the evidence she gave before court into proving the present charges against the accused persons. She saw and heard PW1 testify and she believed her. PW1 had no reason to lie against the appellant. 36 The court also made a critical observation of the appellant at pg 13 lines 18-19 (record of appeal) which is repeated in the judgment at pg 7 lines 18-21 where she states: “In fact the first accused person at some point admitted to having committed the act save that the same had not occurred at the time alleged by one of the prosecution witnesses and particularly as testified by the complainant’s mother. This has not been challenged by the appellant. 37 After considering all the evidence and circumstances of this case I find that all the ingredients for the

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offence of gang rape were proved. The appellant was well identified as one of the culprits. I find no reasons to make me interfere with the conviction. 38 On the sentence meted out, section 10 of the Sexual Offences Act provides: “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.” 39 The appellant was a student at the time of this offence and was definitely in his early adulthood. PW2 also spoke to this. It has not been indicated why he was not given the minimum sentence of 15 years imprisonment for this offence. I hereby set aside the sentence of 20 years and substitute it with 15 years imprisonment. 40 The end result is that the appeal partially succeeds and I make the following orders: 1. Appeal in respect to count 2 succeeds. The conviction is quashed and sentence set aside. 2. Appeal in respect to count 1 partially succeeds. (i) The conviction is upheld. (ii) The sentence of 20 years imprisonment is set aside and substituted with a sentence of 15 years imprisonment. Orders accordingly. Dated, signed and delivered this 3rd day of August 2018 in open court at Kiambu. …………………… HEDWIG I. ONG’UDI JUDGE

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