Republic v Mohamed & 4 others (Sexual Offence 10 of 2019) [2020] KEMC 14 (KLR)

then followed. He also held his male organ (dudu lake) and put it into my female organ (tupu langu la kike). Jafari had then held my legs and spread them. Gachogu held my hands and pinned me on the ground with the grips. After Athuman, Yassin did the same. He took his male organ and put it into my female organ also.1[Parentheses in italics and bold, supplied; rest, mine] 2. The complainant was screamed during the ordeal. 2 passersby, PW3, B W and his son, PW4, O J , responded to the screams and found the complainant herein while completely naked and lying on her back facing upwards i.e. in a sexual intercourse position. The defendants fied away upon seeing their response. 3. The complainant was then led to the area chief, PW5, Habiba Maro. The names of the suspects, the defendants herein, were mentioned and given to her. They were all known to her. They were then arrested from their homes. One of them, Gachogo, however escaped. 4. The scene was revisited. A motorcycle that is alleged to have been used by the 3rd Defendant to transport the complainant to the scene, was recovered at the scene. The scene was also photographed. The motorcycle was confirmed by PW6, K M, to belong to her, and that she had handed it over to the 3rd Defendant to ride it on her behalf. 5. Police oficers were then called. PW9, No. 113989 PC Matunga Victor, was the lead oficer who immediately went to the chief camp, rearrested the defendants herein, went to the scene where he saw the evidence of a struggle, recovered the motor cycle herein, searched the defendants and recovered pieces of unused condoms from the 4th Defendant and also referred the complainant to the hospital for MEDICAL examination and age assessment. The condom pieces were produced as Pexh. No. 8. 6. The age assessment was done by PW7, Jared Omwanza, a dental technologist from Hola Hospital, who used the teeth arrangement and eruption pattern to assess the age to be 15 as at 29.04.2019. He produced the assessment report as PEXH. NO. 4. 7. Pw8, Beryl Nabuyo, a clinical oficer, at Hola County Hospital, treated the complainant herein on 28.04.2019. She found her with bruises at the neck and genital organs. There were signs of frictions at the genital area. She therefore concluded that there was penetration on her. There were female fiuids which came from her vagina. The fiuids were as a result of the sexual activity. She produced the treatment notes, Post Rape Care (PRC) Form and the Medical Examination (P3) Form as PEXH Nos. 2A, 3 and 5 respectively. In cross-examination, PW8, Beryl Nabuyo, confirmed that the bruises and lacerations at the complainant's genital organ were due to forceful penetration in the course of a struggle during the rape ordeal. 8. PW10, NO. 100482 CPL (W) Mildred Agiza, conducted the investigations herein. She stated that the complainant was able to identify the 1st to 4th defendants herein by pointing at them. That the 5th defendant was however not identified. She summed up her investigations in re-examination thus:I conducted investigations. I used the evidence of the girl, the doctor, Kenya Police Reservists oficer, the mother who gave out the motor cycle, the police oficer who arrived at the scene of the incident. The doctor found out that the girl was recently defiled. The 4 accused persons committed the act. From the evidence of the girl, she recognised the motor cycle as 1 Refer to PW1's evidence-in-chief at pages 15 and 16 of the handwritten notes of the proceedings https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/14/eng@2020-02-13 2

page 2 of 13

being driven by Yassin. Some motorcycles came as she was lying down in distress an she was therefore unable to identify it. 9. On the reason why she decided to charge the 5th defendant herein. despite the fact that he was not mentioned anywhere or by anyone, including the complainant herein, she responded in examinationin-chief thus: The 5th accused person was arrested while at Laini. We had not gotten the statement of the chief and the case was high voltage at the time. We did not want to release him on our own. We therefore decided to have him come to court. The girl did not even mention him. The Charges 10. The 1st, 2nd and 3rd defendants herein have been charged with separate counts of Gang Rape c/s 10 of the Sexual Offences Act No. 3 of 2006 (hereinafter abbreviated as SOA), in the first 3 counts herein. They each denied in their respective counts that on 28.04.2019, at a village in Tana-River Sub-County in Tana River County, in association with each other, the other defendants herein and 2 others not before court, each intentionally caused his penis to penetrate the vagina of H.W.J a child aged 15 years old. 11. The 4th and 5th Defendants were on the other hand jointly charged with 3 counts of the same ofience of Gang Rape contrary to the same section of the law. They also denied that on the same day and place, having a common intention to penetrate the vagina of the same child, they were in company of Athman Maro Mohamed2, Haji Delo Juma3 and Mohamed Yassin Badi4, who intentionally caused their penises to separately penetrate the vagina of the said child. Prima Facie Case: No case to answer for the 3rd and 5th Defendants 12. After hearing all the witnesses for the prosecutions, and going through the entire case for the prosecution, the evidence contained therein, and the rival submissions thereon; on 23.01.2010, I came to a conclusion that a prima facie case has been disclosed which required me to call upon the 1st, 2nd and 4th defendants herein, which I did, to make their defences as required under section 211 CPC as follows: a. The 1st Defendant, with respect to the charge in count 1 b. The 2nd Defendant, with respect to the charge in count 2 c. The 4th Defendant, with respect to the charges in counts 4 and 5 13. I however, did not find such a case disclosed with respect to the 3rd Defendant herein, Mohamed Yassin Badi, and the 5th Defendant, Said Omar Malan; and the 4th Defendant with respect to the remaining Count 6. So as not to prejudice, afiect, or otherwise, infiuence the defence of the remaining defendants and in the remaining counts herein, I reserved my reasons for the findings therein which I have included them in this judgment. 14. The charges against the 3rd and 5th Defendants; and that in count 6, were therefore dismissed pursuant to the provisions of section 210 of the Criminal Procedure Code. Consequently the 3rd Defendant was 2 In count IV 3 In count V 4 In count VI https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/14/eng@2020-02-13 3

page 3 of 13

acquitted of the ofience of Gang Rape c/s 10 of the Sexual Offences Act No. 3 of 2006 as charged in count 3 and was therefore released from remand. The 4th Defendant was also similarly acquitted of the same ofience as charged in counts 4, 5 and 6; and was also be set at liberty. 15. There was also the issue of the motor cycle that was produced as exhibit herein. Its correct numbering should be PEXH. No. 11. Following the application by the prosecution on 25/10/2019 for its release to the owner, I did also direct that it be and was released to the proven owner, PW6, K M. 16. At the prima facie case stage, we were at the 'case to answer' stage of the trial. The main issue at this stage was therefore a simple one, namely whether the prosecution, in discharging its burden of proof, has established a prima facie case that requires me to call upon the defendants herein to make their defence as required by section 211 of the Criminal Procedure Code5. If no such case is established, then I was to act accordingly under section 210 CPC6, and acquit the defendants herein. This was held by Lordship, Katiti, J. ( as he then was) of Tanzania High Court in the case of Jonas Nkize v Republic [1992] TLR 213 (HC) at page 218 as follows: If it appears to the court that the case is not made out against the accused person suficiently to require him to make a defence, either in relation to the ofience with which he is charged, or in relation to any other ofience of which under provisions of sections...he is liable to be convicted, he shall dismiss the charge, and acquit the accused person. [ Emphasis supplied] 17. In Anthony Njue Njeru v Republic [2006] eKLR , the Court of Appeal was surprised by a High Court Judge's decision to call upon the appellant to make his defence, even after the judge had expressed himself in a ruling at this stage, similar to the ruling herein, on a case to answer, as follows:I have considered the evidence before me. The evidence shows that the accused shot the deceased David Sila Kimuyu on 18th July, 2002 at Chiromo University Campus within Nairobi area. There is no eye-witness evidence as to how this happened. All witnesses who gave evidence arrived at the scene of crime after the deceased had been shot and had died. This includes the evidence of John Musyimi Kamwanza, PW2 who testified that he was with the accused but ran away before the accused shot the deceased dead. The relevant evidence on record which attempts to explain the circumstances under which the shooting took place are (sic) on the level of hearsay evidence ( underlining supplied) 18. The Court of Appeal then commented as follows: Having expressed himself so conclusively, we find it dificult to understand why the learned Judge found it necessary to put the appellant on his defence. Was there a prima facie case to warrant the trial court to call upon the appellant to defend himself? It is a cardinal principle of our law that the onus is on the prosecution to prove its case beyond reasonable doubt and a prima facie case is not made out if, at the close of prosecution the case is merely one "which on full consideration might possibly be thought suficient to sustain a conviction". [ Emphasis supplied] 19. 'Prima facie' is a Latin word defined by Black's Law Dictionary, 8th Edition as 'Suficient to establish a fact or raise a presumption unless disproved or rebutted'. 'Prima facie case' is defined by the same dictionary as' The establishment of a legally required rebuttable presumption'. To digest this further, 5 Cap. 75, Laws of Kenya 6 Ibid https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/14/eng@2020-02-13 4

page 4 of 13

in simple terms it means the establishment of a rebuttable presumption that an accused person is guilty of the ofience he/she is charged with. 20. The case of Republic v Kennedy Otieno & 6 others (1998) eKLR, gave a recent and simpler explanation of what constitutes a prima facie case. The High Court held that it is a case where there is suficient evidence upon which the court would convict the accused if no explanation is given. 21. The standard of proof as to whether the prosecution has established a prima facie case or not was laid down in the celebrated case of Ramanlal Trambaklal Bhatt v Republic [1957] EA 332 where their Lordships, Newham Worley, P., Sir Ronald Sinclair, V. P., and Bacon JA ( as they then were) explained the concept at page 334 as follows:(i) The onus is on the prosecution to prove its case beyond reasonable doubt and a prima face case is not made out if at the close of the prosecution, the case is merely one which on full consideration might possibly be thought suficient to sustain a conviction. (ii) The question whether there is a case to answer cannot depend only on whether there is 'some' evidence irrespective of its credibility or weight suficient to put the accused on his defence. A mere scintilla of evidence can never be enough; nor can any amount of worthless discredited evidence... It may not be easy to define what is meant by a "prima facie case", but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is ofiered by the defence ( underlining for emphasis is mine) 22. The same Court in Wibiro Alias Musa v Republic [1960] EA at 186 revisited with approval the Ramanlal Case above on the issue of prima facie case. The courts in East Africa including our own have cited these cases with relish and for a good reason: it is good law. 23. This therefore means that as at the close of the prosecution's case, and where the burden of proof does not shift to the defence, the prosecution should have laid out a case that can convict the defendant, assuming that the defendant has no defence in rebuttal7. For a prosecution's case to convict, it must meet the evidential threshold of proof. As aforestated ,it is trite law that the standard of proof in criminal cases for purposes of a conviction is beyond any reasonable doubt. Justice S. Mutuku in Republic v Hassan Mohamud Osman [2013]eKLR, commented as follows: The burden of proving a criminal case lies with the prosecution and never shifts to the accused unless where the law specifically provides the same. Even where the court calls upon an accused person to testify in his defence, it is not so as to prove himself innocent. Courts do so with a view to allowing an accused person to have his day in court and perhaps adduce evidence that may rebut the prosecution evidence and raise the much valuable doubt. Even in cases where the defence of insanity or other statutory defence available to an accused person exists the accused is only required to prove such defence on a balance of probability and not beyond reasonable doubt.8 24. For a court to convict, the prosecution must adduce the necessary evidence to prove all the main ingredients of the ofience/s. The main ingredients of the ofience of Gang Rape such as the one facing the defendants herein is simply rape or defilement; in association with another or other persons. 7 See Justice Mutuku's decision in Republic v Abdi Ibrahim Owl [2013] eKLR 8 See also the Court of Appeal's decision ( S. E. O. Bosire, E. O. O'kubasu and J. W. Onyango Otieno, JJ.) in Anthony Njue Njeru v Republic [2006] eKLR https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/14/eng@2020-02-13 5

page 5 of 13

9 25. Since the main distinguishing factor between rape and defilement is consent, I do find that to be immaterial herein since there is overwhelming evidence that the complainant herein was forcefully sexually penetrated. In Michael Mumo Nzioka v Republic [2019] eKLR, Justice Odunga held that lacerations in genitalia can be proof of penetration even where the hymen is not broken. He went on to find that: '... [I]n fact the mere fact that no spermatozoa is found does not necessarily mean that there was no penetration though its presence may well prove that there was penetration, though again that is not conclusive proof'. 2. Having considered the evidence herein, there is no doubt that the prosecution proved that there was penetration of the complainant's vagina, with a male penis or penises. In the circumstances it did not matter whether the complainant herein was a child or not. The evidence of the age of the victim was therefore an unnecessary ingredient herein. Whether she was a child or not, her vagina was forcefully, unlawfully and intentionally penetrated with a penis or penises, and obviously, without her consent. 27. An intentional and Unlawful act has been defined in section 43 of SOA to mean an act committed:'...(a) in any coercive circumstance; (b) under force, pretences or by fraudulent means; or (c) in respect of a person who is incapable of appreciating the nature of an act which causes the ofience'. 28. The coercive circumstance referred to section 43 (1)(a) include any circumstances where there is: ...(a) use of force against the complainant or another person or against the property of the complainant or that of any other person; (b) the threat of harm against the complainant or another person or against the property of the complainant or that of any other person; (c) abuse of power or authority to the extent that the person in respect of whom an act is committed is inhibited from indicating his or her resistance to such an act or his or her unwillingness to participate in such an act. 29. Under section 42 of SOA, a person consents if he or she agrees by choice and has the freedom and the capacity to make that choice while under section 2(1), penetration means the partial or complete insertion of the genital organ of a person into the genital organ of another person. Genital organs has been defined as the whole or part of male or female genital organs and includes the anus. 30. All these were not contentious herein. Justice George Dulu, in Jumaahiribaekomora v Republic [ High Court of Kenya at Garissa Criminal Appeal No. 53 of 2017, UR] at page 7, paragraph 9, held that apart from proving penetration in a sexual ofience such as the present one, the final element to be proved is the identity of the culprit, in this case the culprits9. Thus, this case had to be decided on the evidence of identification/ recognition. 31. There was no one who identified or recognised the 5th defendant herein defile or rape or in any other way participated in the sexual assault attack on the complainant herein. Not even the complainant herself, or the other identifying witnesses herein, PW3 and PW4, confirmed seeing him at the scene or while participating in the sexual assault ordeal herein. The investigating oficer who confirmed to have charged him out of pressure on the ground, appears to have acted carelessly and unprofessionally. That is the reason why I dismissed the charges against him and acquitted him herein. His acquittal was in fact expected from the outset. That is demonstrated by the investigating oficer's comments during examination-in-chief, that they decided to take him to court so that the court might clear him. It is See also Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 Of 2013 (ur), Where Positive Identification Of The Assailant was said to be the final ingredient forming such sexual ofience https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/14/eng@2020-02-13 6

page 6 of 13

extremely careless to just arrest someone and take them to court expecting that the court will clear him. It therefore appears that this was an abuse of the criminal law process. 32. As concerns the 3rd Defendant herein, the only witness who purported to have identified him is the complainant herself. PW3 and PW4 confirmed that hey did not find him among those who were sexually attacking the complainant herein. This therefore left the sole evidence of the complainant herein. Hers was therefore identification by a single witness in what was obviously under dificult circumstances. The dificult circumstances included the fact that she had then been violently abducted or kidnapped, at night, around 1.00am, and was violently led to a field where she was being sexually assaulted. She however stated that the defendants herein were all known to her before. Her evidence is therefore that of recognition and not that of identification of a stranger. Though recognition evidence has been held to be of much weight than mere identification, practice and case law impose a duty on every court to treat such evidence with much scrutiny and/or caution. 33. In Wamunga v Republic [1989] KLR 424, it was noted that 'evidence of visual identification in criminal cases can bring about miscarriages of justice and it is of vital importance that such evidence is examined carefully to minimise this danger' and the court must therefore exercise caution before convicting a defendant in reliance on the correctness of such evidence. I am also alive to the fact that mistakes can still be made where a witness purports to recognise a close relative or friend/ neighbour. 34. Such scrutiny should be in the form of 2 tests as held in Simiyu And Another v Republic [2005] 1KLR 192: the first one being on the condition of the said identification; and the second one on whether that evidence of identification can be relied on in the absence of any other evidence. I began with the condition prevailing at the time of the said identification of the 3rd defendant herein, so as to eliminate any possibility of mistaken identity. 35. It was then at night. Around 1.00am to 3.00pm. Issues to do with poor evidence of identification of defendants under such dificult circumstances abound. The most frequently asked questions centre around the following: - 36. a. What time of the night was it when the alleged ofiense occurred? b. Was there light for example moonlight and if so how bright was it? c. If the night was dark, was there any other source of light which could have enabled the clear and proper identification/ recognition of the defendant? d. If there was such light, how intense was it and how far was it from where both the witness and the defendant were? e. For how long was the defendant under the observation of the witness, and how far apart were they from each other during that time? Had the defendant disguised his face at all? f. If identification is by voice, for how long had the witness known the voice of the defendant? g. If identification is by facial appearance, did the witness make a mental note of any special features on the face/head of the defendant? h. If identification is by clothing, were there any special markings on the clothes to make such clothes stand out from among other clothes? The single identifying witness for the 3rd Defendant herein is PW1, the complainant herself. It was dead in the night at the time. She alleges that there was moonlight. This was however challenged by the defendants herein during cross-examination. There is however overwhelming evidence herein that https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/14/eng@2020-02-13 7

page 7 of 13

the moonlight was not that bright at the time. The complainant herself confirmed that the moonlight was not bright.10 PW4 also confirmed that the moonlight was not that bright at the time11. They in fact had to rely on the light from the torch. The investigating oficer also confirmed that she found out that the moonlight was not bright at the time. 37. The complainant was indeed in distress at the time of the purported identification of the 3rd defendant herein and this could be the reason why she could not identify or readily recognise him in court. There are several instances when she found it dificult to point at Yassin, whom she alleges to have transported her to the scene of the sexual violence, and also participated in penetrating her. When asked to point at Yassin, whom she claims to have known very well because they hail from the same village and have known for over 3 years, the complainant stared at the defendants in the dock for some time before erroneously pointing at the 4th Defendant ( Jafari Galogalo Athman)12. That was during her evidencein-chief. She was still not sure of the identity when being cross-examined by the 3rd Defendant. She again thought over it for some time before pointing at the 3rd defendant.13 38. PW3 and PW4 who responded to the scene however confirmed in their evidence that they did not see the 3rd defendant at the scene as alleged. The motorcycle that was purported to have been found at the scene of the sexual attack herein was not identified by the complainant to have been the one that was used to transport in the commission of the ofience. It was in fact not shown to her at all. The evidence of the motorcycle may therefore still not help in linking the 3rd defendant herein with the scene of the crime herein. That is the main reason why I found the evidence of his identification herein to be suspect and/or doubtful and hence his acquittal alongside the 5th defendant herein. 39. Having acquitted the 3rd Defendant, I found the charges involving him, mainly counts 3 and 6, not having been proved to the required standard as at the close of h prosecution's case. I therefore accordingly dismissed them pursuant to the provisions of section 210 CPC. 40. In Joan Chebichii Sawe v Republic [2003] eKLR, the Court of Appeal expressed itself thus: 'The suspicion may be strong, but this is a game with clear and settled rules of engagement. The prosecution must prove the case against an accused beyond any reasonable doubt'. 41. I also wish to adopt the position of the Supreme Court of Indian in the case of State Of Punjab v Jagir Singh [1974] 3 SCC 277 that: A criminal trial is not like a fairy tale wherein one is free to give fiight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged...In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts... 42. Therefore, in acquitting the defendants, the court does not necessarily make a definite finding that the defendants are factually innocent of the ofience with which they are charged. It simply makes a finding that the prosecution has failed to prove their guilt and they are therefore constitutionally deemed to be innocent. That is what our law provides. While some people may be unhappy with the presumption of 10 Refer to her evidence-in-chief at page 13 of the handwritten proceedings, evidence during cross-examination at page 21. 11 Refer to his evidence at page 59 12 Refer to the proceedings at page 12 of the handwritten notes 13 Refer to the proceedings at page 24 of the handwritten notes https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/14/eng@2020-02-13 8

page 8 of 13

innocence, it is a time-tested principle in all jurisdictions which apply democratic principles and unless we opt to go the dictatorship mob way, we have no option but to endure it. 43. Since the Constitution of Kenya prescribes the rule of law as a binding national value, then the law is paramount and as was appreciated in Dr. Christopher Ndarathi Murungaru v Ag And Another, Civil Application No. Nai. 43 of 2006 (24/2006), at page 12: ... [t]he Constitution of the Republic is a refiection of the supreme public interest and its provisions must be upheld by the courts, sometimes even to the annoyance of the public...We have said before and we will repeat it. The Kenyan nation has chosen the path of democracy: our Constitution itself talks of what is justifiable in a democratic society. Democracy is often an ineficient and at times messy system. A dictatorship, on the other hand, might be quite eficient and less messy. In dictatorship, we could simply round up all these persons we suspect to be involved in corruption and economic crimes and simply lock them up without much ado. That is not the path Kenya has taken. It has opted for the rule of law and the rule of law implies due process. The courts must stick to that path even if the public may in any particular case want a contrary thing and even if those who are mighty and powerful might ignore the court's decision 44. Bagmall, J. in Crowcher v Crowcher [1972] 1 WLR 425, 430 stated that: '...[t]he only justice that can be attained by mortals, who are fallible and are not omniscient is justice according to the law: the justice that fiows from the application of sure and settled principles to proved or admitted facts. Defence Case: Case To Answer for the 1st, 2nd and 4th Defendants 45. The remaining defendants were however called upon to make their defences accordingly. They all gave their defence and closed their cases in the same day of the ruling. The 1st and 2nd Defendants gave unsworn statements, while the 4th Defendant testified on oath. 46. The 1st defendant stated that they had disagreed with an uncle of the complainant because of a land issue. The issue was however cleared by the headman. He therefore decided to continue with his normal life. At one point, he was away cultivating his farm. He eventually decided to return back home. While on his way, he met with a KPR (police reservist) who informed him that he was wanted by the chief. He therefore decided to head directly to the chief. At the chief, policemen came and suddenly handcufied him. He was the charged with the ofiences herein which he denies. 47. The 2nd Defendant on his part stated that he was in confiict with one Ali Hassan, over issues that he inherited from his deceased's brother. That Ali Hassan had at one point vowed to do some unforeseeable bad acts to him that he will ever regret. That on 29.04.2019, he was at home, when he met some KPR oficers who directed him to the chief's ofice at Laini. At the chief's place, he was informed that a certain girl had been defiled. He denied being involved because his children are older than the complainant and he could not therefore commit such an act on her. He was however nevertheless arrested and handed over to the police. Inside the police vehicle, he was astonished to find the wife of Ali Hassan inside there. He therefore concluded that it is Ali Hassan who had accused him and led to his arrest. He states that he was shocked when he did not see him come to court as a witness, and yet he had left his contact numbers at the police station. He therefore still wonders what he did or what caused him to be charged herein. 48. DW1, Jafaro Galogalo Athman, the 4th Defendant herein, stated that on the material night, 28.04.2019, he was assigned to drive cows to Bura. That he did the work overnight and was paid his dues the following morning while still at Bura. He arrived back home at around 10.30 am, the following day. He found a ceremony going on at the chief's place. He saw some 2 KPR oficers there. That one of https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/14/eng@2020-02-13 9

page 9 of 13

them suddenly remarked that 'Mzee Jafaro is here'. He was then called and tricked that the chief wanted him. He decided to go home and change his clothes before heading to meet the chief. That after a short while, the police came and arrested him. He stated further that the KPR oficers who participated in his arrest do not get along with him. That it is because he is not a native of the village. That the KPR had vowed to do some harm to him if he does not relocate out of the village. That that could be the reason why the charge of defilement against him herein has been framed as that of common intent. He denies having been at the scene of the crime herein. 49. In cross-examination, he stated that he knew the defendants herein since their arrest and that he did not know them before. That the chief was aware of their dispute with the KPR. That the complainant herein goes to the same school with his children. He however confirmed that he had no issue with the other witnesses herein. Issues for Determination 50. The burden and standard of proof are still the same even after the close of the defence. The issue is still that of identification and/or recognition. The 4th Defendant raised an alibi. He gave what appears to be a graphic account of his itinerary on the night of 28.04.2019, till the following morning up to when he was arrested. It is trite law that when a defendant raises the Defence of alibi at whatever stage of the trial, he does not assume the burden of proving the alibi. The burden lies on the prosecution to call evidence to displace the alibi even if the same is raised at the Defence stage14. Reliance is placed on section 212 of the Criminal Procedure Code which provides as follows: - 511. The Court of Appeal in Wang'ombe v Republic [1980] KLR 149 held inter alia as follows: ...(i)n Ssentale v Uganda [1968] EA 365, 368 [Sir Udo Udoma CJ]...said that a prisoner who puts forwards an alibi as an answer to a charge does not thereby assume any burden of proving that answer; it is a misdirection to refer to any burden as resting on the prisoner in such a case; for the burden of proving his guilt remains throughout on the prosecution. We agree, we have ourselves said so on more than one occasion...The defence of alibi was put forward for the first time some four months after the robbery when the appellant made his unsworn statement in court. Even in such circumstances the prosecution or the police ought to check and test the alibi wherever possible. Determination 14 52. Whereas there was no corroboration of the complainant's evidence of identification of the 3rd Defendant herein; and there was no any single evidence to identify the 5th defendant herein, I find corroboration with regards to the identification and/or recognition of the remaining defendants herein. 53. To begin with the complainant's visual identification of Jafaro, the 4th Defendant, the raiser of the alibi defence herein, was from the outset backed by voice recognition. She impressively testified while on oath that the 4th Defendant is a more relative of hers than the others. That when she recognised him, she called out to him to go to her aid, only for him to side with, and join, her tormentors. That he physically spread her legs for the others to penetrate her. It is then that Delo, and Athman (1st and See the decision of the Court of Appeal in Victor Mwendwa Mulinge v Republic [2014] eKLR [I]f the accused person adduces evidence in his defence introducing a new matter which the prosecutor could not by the exercise of reasonable diligence have foreseen, the court may allow the prosecutor to adduce evidence in reply to rebut that matter https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/14/eng@2020-02-13 10

page 10 of 13

2nd Defendants) forcefully penetrated her in turns. She saw the 4th Defendant with some condoms. Some condoms were also recovered from him and produced as exhibit herein. 15 54. What could have appeared as a shaky evidence of identification of all the remaining defendants herein by the complainant, was impressively further corroborated by the evidence of PW3. He confirmed finding the 1st Defendant while literally still in the act on top of the complainant. He was half naked while the complainant was completely naked and lying on her back, facing upwards. The 2nd Defendant was also with them at the scene. The 4th Defendant also. PW4 went further to describe the 4th Defendant's manner of dressing at the time. He further stated that he also knew the 4th Defendant herein very well, as he hails from the same village. He also recognised his voice when he said 'utaleta watu' while urging the complainant to stop screaming. PW4's evidence was not challenged in crossexamination. In fact, there was nothing much put to him during cross-0examination. 55. There was further corroboration from PW5. He was however able to identify the 1st and 4th Defendants while they were escaping away from his father, PW4, given that he was behind his father at the time. There was also not much put to him in cross-examination which could challenge his evidence on the identifications. 56. With the corroborations herein, I find that the prosecution has placed the 1st, 2nd and 4th defendants at the scene of the defilement/ rape herein. The evidence of identifications/ recognitions has supported or corroborated each other. The 1st and 2nd defendant actively sexually penetrated the complainant herein in association with the 4th defendant. The 4th Defendant's alibi defence has thus been challenged by the overwhelming evidence herein that he was on the material night herein positively recognised to have joined hands with the 1st and 2nd Defendants, and others not in court to have the complainant herein, his relative, sexually molested. He could not have been anywhere else as claimed by him, yet the overwhelming evidence herein places him at the scene. His alibi defence thus appears concocted or invented for this case. 57. There was no need for the prosecution to rebut the same, as the prosecution's evidence on his identification has suficiently been corroborated and thus places him at the scene of the crime herein. I also see no reason why the complainant herein would have falsely implicated him herein. Moreover, the chief, PW6, denied being aware of any issue involving him and the KPR oficer, that could have motivated the KPR to falsely implicate him with this heinous crime. It was however confirmed herein that the defendants herein were arrested based on the report by the complainant, who mentioned them. 58. I similarly find all the other defences made herein to have been displaced by the overwhelming and corroborated evidence of the complainant witnesses herein. I do therefore find that the 1st, 2nd and 4th defendants herein guilty as charged. There was in fact no need to charge the 4th Defendant herein with common intention. He conveniently spread the complainant's legs so as to enable the other defendants and persons herein to forcefully penetrate her. By virtue of section 20(b) of the Penal Code15, he is Cap. 63, Laws of Kenya 20. (1) When an ofience is committed, each of the following persons is deemed to have taken part in committing the ofience and to be guilty of the ofience , and may be charged with actually committing it, that is to say(a) every person who actually does the act or makes the omission which constitutes the ofience; (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the ofience; (c) every person who aids or abets another person in committing the ofience; (d) any person who counsels or procures any other person to commit the ofience; ... https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/14/eng@2020-02-13 11

page 11 of 13

as guilty as the other defendants who forcefully penetrated the complainant. The section provides as follows: 59. There is however a small technicality with regards to the remaining charges herein. It has to do with the acquittal of the 3rd Defendant herein. That acquittal had led to the dismissal of the charges in 3 and 4 herein. It therefore must have an efiect on the remaining charges where the 3rd Defendant is alleged to have been involved. They are charges in counts 1 and 2. The 1st and the 2nd Defendants are alleged to have associated with the 3rd defendant, among others, to commit the penetration on the complainant herein. Since charges must succeed or fail within the confines of their particulars, I find that the acquittal of the 3rd Defendant means that the particulars of the charges in counts 1 and 3 have not been proved entirely as required. They have however been proved partially. In the circumstances, the only option is to reduce the charge therein to that of Rape c/s 3 of the SOA which defines Rape as follows: [A] person commits the ofience termed rape if: 60. (a) he or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs; (b) the other person does not consent to the penetration; or the consent is obtained by force or by means of threats or intimidation of any kind. There is therefore no need of proof of association in the ofience of Rape. Secondly, the ofience of rape is cognate to that of Gang Rape. Thirdly, It is also minor or lesser in nature, going by the prescribed minimum penalties for the 2 ofiences. This therefore cures any technicality herein and is pursuant to the provisions of section 179(2) as read with 191 of the Criminal Procedure Code. Conclusion 53. Pursuant to the provisions of section 215 of the CPC, as read with sections 179(2) and 191 of the same Code, I do hereby convict the 1st and 2nd Defendant of the ofience of Rape c/s 3 of the SOA, and the 4th Defendant of the ofience of Gang Rape c/s 10 of the SOA as charged in counts 4 and 5. I shall hereinafter receive the evidence or material available and relevant in sentencing. DATED, SIGNED AND DELIVERED AT HOLA IN OPEN COURT ( BUT IN CAMERA) THIS13TH DAY OF FEBRUARY, 2020 ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Buko Prosecutor: Atika 1st Defendant: Present 2nd Defendant: Present 3rd Defendant: Absent 4th Defendant: Present 5th Defendant: Absent Victim: Absent https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/14/eng@2020-02-13 12

page 12 of 13

Victim's guardian: Absent https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/14/eng@2020-02-13 13

page 13 of 13