REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU CRIMINAL APPEAL NUMBER 22 OF 2020 JOHN CHIRCHIR KIPLANGAT.......................................................................1 ST APPELLANT VINCENT LANGAT KIBET...............................................................................2 ND APPELLANT VERSUS REPUBLIC.................................................................................................................RESPONDENT JUDGMENT 1. The two (2) appellants, father and son were charged with Gang Rape Contrary to Section 10 of the Sexual Offence Act, with the Alternative Charge of Indecent Act with and adult Contrary to Section 11 A of the Sexual Offences Act, and Assault Causing Actual Bodily Harm Contrary to Section 251 of the Penal Code. 2. On the 1st Count it is alleged that on 23 rd June 2018 and Tiloa Farm in Kuresoi Sub County within Nakuru County, the two, in association with themselves they intentionally and unlawfully caused their penis to penetrate the vagina of BC without her consent. In the alternative, that, that in association with themselves they intentionally and unlawfully touched the buttock, breast, anus and vagina of BC with their penis against her will. 3. On the second count it was alleged that on 23 rd June 2018 at [particulars withheld] in Kuresoi Sub County within Nakuru County they intentionally and unlawfully assaulted BC hence causing actual bodily harm to her. 4. In a judgment delivered on 28 th May 2020, the learned magistrate E. Soita Resident Magistrate found the two (2) accused guilty of both main counts. The 1st accused was sentenced to twenty (20) years imprisonment on the 1 st count, the 2nd and to fifteen (15) years imprisonment. With respect to the 2nd count the learned trial magistrate held; “for count 2 being a misdemeanor, same is held in abeyance.” 5. Aggrieved, the appellant’s filed this appeal on the grounds; 1. THAT the learned trial magistrate erred in law and in fact by failing to appreciate that the prosecution evidence was marred with contradictions and inconsistencies. 2. THAT the learned trial magistrate erred in law and in fact by convicting the appellant on the basis of incredible evidence that was not even corroborated. 3. THAT the learned trial magistrate erred in law and in fact by convicting the appellant on the basis of the medical evidence adduced by the prosecution yet the same did not create a nexus between me and the alleged offence. 4. THAT the learned trial magistrate erred in law and in fact by failing to note that the prosecution case was not proved beyond any reasonable doubt. 5. THAT the learned trial magistrate erred in law and in fact by dismissing the appellant’s plausible defence without giving any cogent reasons thereof. 6. THAT the learned trial magistrate erred in law and in fact by failing to consider the provisions of Section 333 of the criminal
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procedure code while sentencing. 6. This being a first appeal the appellants are entitled to a re-assessment of the evidence, re-evaluation of this same, this court to draw its conclusion, while keeping in mind that it neither saw nor heard the witnesses see Okeno vs Republic. 7. At the hearing of the appeal the appellants made oral submissions. The 1st appellant submitted that he was praying for a lesser sentence, he argued that the sentence was harsh. He is sixty five (65) years old. He denied committing the offence, that the only reason he was before this court is because he had refused to give the complainant the Kshs. 20,000/= she demanded. The 2nd appellant submitted that it was not possible for a father and son to have sexual intercourse with the same woman. It was an abomination. He denied that they committed the offence. He urged the court to reduce the sentence. 8. Ms. Murunga for state argued that the state had established the ingredients of gang rape, and that the complainant had testified how the two (2) appellants, met her while she was going home. That the 1st appellant raped her while his son held her legs, then the son raped her while the father held her legs. The state urged the court to find that the charge of gang defilement was proved. 9. From the record the complainant BC 28 years old at the material time told the court that on 3 rd June 2019 at 1730 hours she was headed home when she met the two accused persons. 10. That it was Vincent who hit her and she fell down, she states; “Vincent did rape me; he did hit me. He did make me fall down, when I refused he did hit me with a stick on my face. Vincent did take me by force, he did take me by force, … John also held me on the ground… Vincent did tear my clothes he did tear my inner wear. The father did hold my leg and Vincent did enter my sehemu yangu ya siri ya kukojoa using his penis. After finishing his father did the same, I did scream and a neighbour came, Josphat. He was with Benard. They are my neighbours. They did find John raping me. I was injured when the incident happened. I did go to hospital… I did report to police.” 11. On cross examination she said that 1st accused raped her with his son, “…from morning, the incident happened at 7.30 p.m. Your son assaulted me, you raped. You were together with your son. You did rape me.” 12. On re-examination she said one was raped by both. 13. PW2 Patrick Bett a Clinical Officer at Kuresoi Health Centre testified that the complainant presented with chest pain, saying that she was assaulted by two (2) people, father and son. That prior to the assault the two (2) raped her. She complained of blurred vision, swollen face; that a vaginal examination revealed normal genitalia, soiled vulva, foul smelling discharge. No abnormalities were detected. Her clothes were soiled. On cross examination he testified that she was assaulted on 23 rd and raped on 25th. 14. PW3 Benard Kirui testified that on 23rd June 2018 about 7.30 p.m. he was on his way home when he found one B screaming. He said he found the 1st accused lying on top of the complainant who did not have clothes on. He said he turned (sic) the complainant, and also turned the 1st accused. He said the 1st accused woke up and he had a knife. He took the complainant to her home and advised her to go to hospital. He said the 1 st accused was alone. He said there were no grudges. On cross examination he testified that he found the 1 st accused with a knife and the complainant. He said he did not see the 2nd accused on that day. 15. PW4 No. 107387 PC Stella Chelangat was the investigating officer she was instructed to escort the complainant to hospital, on 24 th June 2018. She escorted her to hospital where she was examined, and a P3 filed. 16. She testified that on 25th June 2018, she visited the scene. She said she did not find anything at the scene, “I only found a dress stepped on.” She said that the two (2) accused raped the complainant, and two (2) people found the accused persons raping her. On cross examination she said she did not visit the scene. 17. In their defence each accused gave an unsworn statement. The first accused person denied committing the offence. The second accused also denied committing the offence. He testified that following Kipsigis culture, a father and a son could not do what was said. 18. The issue is whether the prosecution proved the two charges of gang rape and assault. 19. It is evident from the evidence given by the complainant and the alleged eye witness that their evidence was contradictory and inconsistent. The complainant said the two (2) eye witnesses found the two (2) accused persons raping her. The key contradiction is that one of the so called eye witnesses told the court that he only saw the 1 st accused and PW1. That the 2 nd accused was not at the scene. He also said that the complainant was naked, something that the complainant never stated in her testimony. In addition, he said the 1 st accused was armed with a knife, something that the complainant never mentioned. She alleged eye witness never said that he found the 1 st accused raping the complainant. He said he found him on top of her and turned both of them, I believe he meant he separated them. 20. It is significant that he testified never saw the 2 nd accused at the alleged scene, yet complainant said he was holding her legs. It is also significant that he never said anything about the two being in the state of sexual intercourse.
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21. The curious thing is the fact that the Clinical Officer told the court that complainant told him that she was first assaulted on 23 rd, then raped on 25th. The investigating officer says that the report of assault and rape was that both happened the same day, and she visited the scene on 25th. 22. The complainant herself says it happened on 3 rd June 2018. The charge sheet states that both offences were committed on the same date, at different places but at the same time. 23. Upon examination by the Clinical Officer for the complainant’s genitalia was normal, even after the alleged gang rape by two (2) men, who according to her description forcefully had sexual intercourse with her. 24. Save for persons afflicted by unfathomable depravity, something that the prosecution did not seek to establish it is most unlikely that a father and son would go to commit such an abomination together. It is taboo and in most of our cultures a father and a son would have to undergo cleansing in the event that they had sexual intercourse with the same woman. In that rural setting the community would be up in arms against them because it is taboo. It is thus surprise that there is no evidence as to how they were arrested. It is doubtful that such an abomination with alleged eye witnesses be allowed to slide. I have to make the unfortunate finding that the fact that the alleged eye witness made no mention of the alleged act is indicative of the fact that it did not happen as alleged. 25. This is supported by the analysis of the evidence that the prosecution’s evidence on gang rape did meet the required standards. The testimony of complainant and the alleged eye witness are contradictory and incredible. The failure to call the other alleged eye witness is indicative that he would not have supported the case for the prosecution. 26. Did the assault occur? The complainant claimed that she was assaulted by Vincent, with a piece of stick. Her eye witness testified that 1st accused was attacking her while armed with a knife and the 2 nd accused was not at the scene. As indicated, the other eye witness was not called to testify. 27. The complainant presented with injuries, to the clinical officer. What emerges from the evidence is that there was some kind of fight between the complainant and the 1 st accused, which was witnessed by PW3 and this is what he separated, a struggle between the two (2), he escorted the complainant home and advised her go to hospital. Hence the only offence that was established is assault causing bodily and only against the 1st accused person. 28. Having considered the evidence, I find that the appeal succeeds to the effect that I find that the charge of gang rape, and the alternative charge of indecent act with an adult, were not proved to the required standard, to warrant the conviction and sentence. 29. To that end the conviction is quashed, and the sentence set aside. 30. With regard to 2nd count of assault causing actual bodily harm, I find that there evidence available against the 1 st accused. 31. The conviction against the 2nd accused is quashed, the sentence set aside. 32. With respect to 2nd count, the learned trial magistrate did not sentence, but held the same in abeyance, that was a misdirection, it is only in capital cases where an accused is handed the sentence of death that the other sentences are held in abeyance. 33. Hence for this 1st accused, for the offence of assault, causing actual bodily harm the conviction is sustained. 34. As regards the sentence, Section 251 of the Penal Code provides “Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable to imprisonment for five years.” 35. The 1st accused is a first offender. There were no serious injuries, He is sentenced to (1) year imprisonment from the date of arrest would suffice. 36. This sentence is deemed as duly served. 37. The appellants are to be set at liberty unless otherwise legally held. 38. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH MARCH, 2022. MUMBUA T. MATHEKA, JUDGE.
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IN THE PRESENCE OF:COURT ASSISTANT EDNA FOR STATE: MS. MURUNGA APPELLANTS IN PERSON
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