Josphat Musyoka Mwania v Republic

(i) Whether there was penetration. (ii) Whether the complainant consented to the act. (iii) Whether the appellant committed the act and if he was positively recognized. The trial found all the above issues in the positive and found the appellant guilty and thereby convicted him and sentenced him to serve 30 years in prison. 9. The appellant was dissatisfied with both the conviction and sentence. He lodged this appeal and raised the following grounds namely: i. That the trial magistrate erred in law and fact by conviction him yet he was not identified. ii. That the evidence tendered were contradictory and inconsistent. iii. That the learned Magistrate erred by convicting him on evidence that lacked corroboration. 10. In his written submission through learned Counsel D.M. Mutinda & Co. Advocate the appellant submits that the offence occurred at night and it was difficult for the complainant to identify the culprit. He submits that the prosecution’s case did not clearly pin point him as the culprit. He argues that if he was the culprit, he would have been apprehended earlier and that he may have been mistaken to be the culprit when he went to say ‘‘pole’’ to his grandmother. According to him the prosecution’s case against him was not proved beyond reasonable doubt. 11. On sentence, the appellant contends that the sentence was too harsh because the law provides for a sentence of not less than 10 years. He faults the learned trial magistrate for meting out 30 years’ imprisonment terming it too harsh. 12. The prosecution has opposed this appeal through written submissions by Mrs. Kabaale. The Respondent submit that there was proof of penetration citing the evidence tendered by PW5 (CPL Regina Muchai) who visited the scene and saw blood and faecal matter on the complainant’s house. The Respondent also cites the medical evidence tendered by Dr. Nzisa Mutua (PW3). 13. The Respondent further submits that identification was positive because the complainant knew the appellant well. The State also contends that the sentence was not harsh but justified and urges this court to uphold it. 14. This court has considered this appeal and the response by the state. The appellant has appealed on both conviction and the sentence of 30 years. As the first appellate court, this court has the duty to re-evaluate the trial while at the same time appreciating that the Trial Court is the one that had the opportunity of actually hearing the testimonies and seeing the witness first hand. This duty was succinctly stated by the Court of Appeal in Okeno versus Republic 91972) EA 32 as follows: - ‘‘An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellant’s court own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the 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 conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had advantage of hearing and seeing the witnesses. 15. The appellant was charged with the offence of rape contrary to Section 3 (1) of Sexual Offence Act which provides that a person commit rape; ‘‘He or she intentionally and unlawfully commits an act which causes penetration with his or genital organs. a) The other person does not consent to the penetration; or b) The consent is obtained by force or by means of threats or intimidation of any kind.’’ 16. The prosecution was required to establish 3 elements: (i) Penetration (ii) Lack of consent (iii) Positive identification of the perpetrator

page 2 of 3

17. The element of penetration in this appeal is not contested. The medical evidence tendered (P Ex 1 & 2) clearly corroborated the evidence given by the victim (PW1). The complainant was woken up in the wee hours of the night, grabbed, threatened and raped. She told the trial court that she vomited blood and defecated on herself as a result of the ordeal. The investigating officer (PW6) saw blood and fecal matter on the house of the victim and the same were evidence form the petticoat (P Ex 3) and ‘‘lesso’’ (P Ex 4) which were tendered in court. Dr. Nzisa Mutua (PW3) examined the victim and noted that injuries on her genitalia and presence of faecal matter around her anal canal. The ingredient of penetration was proved beyond doubt and the trial court cannot be faulted in its finding. 18. It is also evident from the evidence of PW1 and other witnesses including the defence witnesses that the complainant did not consent to the act. He screams attest to the same and PW2 clearly states that she heard her mother scream when she rushed to find out what had happened she found her on the floor complaining that she had been raped. The defence witness including the appellant testified and confirmed hearing the screams on the material night. 19. On identification, the appellant contends that there was no proof beyond doubt that he was the culprit given that it was night and the fact that he went in the morning to the grandmother to pass message of sympathy and empathy to the victim. He also says there was existence of a grudge. 20. I have however gone through the proceedings and I find that the issue of existence of grudge was not brought up during cross examination by the appellant. The issue was only brought up during his cross examination by the prosecution probably upon being asked whether there was a grudge. The defence did not offer any evidence to support the said allegation. It was an afterthought as such. 21. It is true the offence took place at night but the evidence tendered shows that the old lady had spotlight and as she clearly stated that She saw the appellant in a red cap. I agree with the Respondent that owing to familiarity between the complainant and the appellant, identification was positive. In my view, the appellant being a grandson to the complainant living in the next door could not have been mistaken because the old lady had a torch and says she saw him quite clearly. Recognition in such circumstances is beyond doubt and the appellant cannot hang on the fact that it was dark and it was difficult to be identified. That fact of recognition was sufficient even without corroboration because if recognition of an offender required corroboration in law then conviction in sexual offences would virtually be a herculean task. The provision of Section 124 of the Evidence Act provides that even the evidence of a victim alone without any other evidence is sufficient to found a conviction if the trial court is convinced that the victim is telling the truth. The evidence tendered shows that the victim was a grandmother to the appellant and there were no reasons advanced which would show that an old lady advanced in years such as the complainant would lie against her own grandchild. This court finds that the evidence tendered by the prosecution proved beyond doubt that the appellant was the culprit who raped the complainant on the fateful day. Conviction of the appellant was therefor well founded and save in the circumstances. 22. On sentence, the provisions of Section 3 (3) of Sexual Offence Act provide as follows: - ‘‘Any person guilty of an offence under this Section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.’’ The minimum sentence provided by statute is 10 years. The trial magistrate used her discretion to enhance the sentence to 30 years on grounds that the victim was advanced in age and the grief visited upon her. While I agree that the old lady underwent horrid experience given her age, but the sentence somewhat wa a bit harsh. A sentence is intended to give retributive justice yes but it should also provide an opportunity for the offender to reform. The reformation aspect may have been comprised by a sentence that appears too punitive which is evident in this instance. For that reason, this appeal fails on the conviction but partly succeeds on sentence. The conviction is upheld but the sentence of 30 years is set aside and in its place the appellant is sentenced to serve 15 years which will run from the date of his conviction. DATED, SIGNED AND DELIVERED AT KITUI THIS 7TH DAY OF MARCH 2022. HON. JUSTICE R. K. LIMO JUDGE

page 3 of 3