ANTHONY NTHIGA VS State Law ANTHONY NTHIGA VS State Law

(An Appeal from the decision of Hon. S.K Ngii P.M in Siakago MCSO No. E042 of 2022 Delivered on 7^th June, 2024)

The appellant was charged with the offence of rape contrary to section 3 (1) (a) (b) (3) of the Sexual Offences Act, the Particulars being that on the 1^st day of October, 2022 at Kambaru area in Mbeere North Sub-county, intentionally and unlawfully caused his penis to penetrate the vagina of Mary Wanjiru by use of force. He also faced an alternative charge of committing an indecent act with an adult contrary to section 11 (A) of the Sexual Offences Act. In Count II, he was charged with threatening to kill contrary to section 223 of the penal code the particulars being that: on the same date and at the same place, without lawful excuse he uttered the following words; “nitakumaliza wewe” threatening to kill Mary Wanjiru.
The matter proceeded to full hearing. The complainant testified as PW1 and stated that on the 01/10/2022, the appellant found him fetching water at the river and he suddenly grabbed her pant from underneath her skirt. That when she turned, the appellant asked her to give him and she asked him what he wanted to be given. He told her that he would show her and he warned her not to scream.
He pushed her into a thicket near the river, about 100 metres, undressed her and removed her panty. That he then removed all his clothes and spread them on the ground and asked her to lie on them. He proceeded to have sex with her and warned her not to disclose the incident to anyone. He asked her to dress up, led her away and even helped her to carry the jerricans and offered to help her irrigate tobacco which she was watering.
That on arrival at the farm, she (PW1) asked Peter Kinyua and Kariuki to arrest the appellant and the sword that he had dropped on the way to the farm was recovered by Kariuki. They arrested the suspect and took him to the Chief’s office and while there he sought forgiveness but the chief told them to take him to Siakago Police station. That she went to hospital the following day and a P3 form was filled for him. On cross-examination she stated that she saw the accused for the first time on the material day, and he had a sword which he dropped on the way to the farm. She denied that she is the one who called the appellant to the river and that the people who arrested the appellant had pangas.
PW2 was Peter Kinyua Njiru the husband to PW1 and a distant relative of the appellant. He stated that on the material day, she was in the farm with PW1, Hezron Kariuki and John Mwangi. That his wife and himself were watering tobacco nursery and found that there were weeds and he started pulling the weeds as his wife went for water from the river. She went the first round but she did not go back on the second round and he went to check on her and he found the Jerrican and lesso belonging to his wife and he assumed that his wife was with his cousin and he went back to the farm.
That at 6.00 p.m. PW1 went back to the farm in the company of the appellant who was helping her to carry a Jerrican. That PW1 whispered to her that she had been raped by the appellant. That on interrogating the appellant he claimed that he did not know that PW1 was his (PW2’s) wife. He called the appellant’s mother and they proceeded to the Chief’s office and the appellant admitted to having raped PW1 and sought forgiveness. That about the sword, the appellant explained how he got it. That the Chief referred them to police station and thereafter PW1 went to Siakago Hospital. He identified the appellant as the person they arrested.
PW3 was Bidan Mwangi Macharia who stated that both PW1 and her husband are known to her and so is the appellant. That on the material day, they were at the farm with PW1, her husband, Kariuki and another person when PW1 went to the river to fetch water but she delayed for about one hour. That her husband Kinyua went to look for her but did not find her but found the Jerrican and the lesso at the river. That later, the appellant went to the farm in the company of the PW1 both carrying jerricans. PW1 signalled her husband and told them that the appellant had raped her. She even told them that the appellant had a sword. They went for the sword but the appellant dropped it but they managed to trace it. That they called the mother of the appellant and proceeded to the Chief’s Office and the appellant apologized. That the Chief referred them to the police and after that they went to hospital.
PW4 was John Mwangi who stated that he examined PW1 on the 21/10/2022 and on examination, PW1 had fresh multiple scratch marks on both thighs and multiple bruises on both knees. That she had STI and PUS was visible upon lab test. He opined that she may have been defiled because the clothes she was wearing were moist both on the front and the back. That the injuries on the knee and the thighs were also consistent to defilement.
PW5 was Fundi Njeru Njoka who stated that sometime in the year 2022 the appellant went to his home carrying metallic object and asked him to make a sword for him, which he did and charged him Kshs.400/-. He identified the sword as the one he made for the appellant.
PW6 was Silas Kipkorir who gave evidence on behalf of P.C Njeri who was the investigating officer but who was attending training course in Kiganjo. He stated that PW1 had complained of rape and, the matter was reported by the Chief following arrest of the appellant by members of the public. That the appellant was taken to the police station in the company of the complainant and a sword was also taken to the police station. The appellant was re-arrested and upon conclusion of investigations he was charged with the offence before the Court.
The appellant was put on his defence and he opted to give unsworn evidence. He stated that on the material date, he left home for Kathegi area and passed by the river where he met PW1 who is known to him. That shortly thereafter, someone escorted some cattle to take water from the river and drove them back after greeting him. That shortly before dark they left the scene in the company of PW1 and on their way, they encountered three people who were armed with pangas, jerricans and food dishes. They arrested him and beat him up as well as PW1 who agreed to frame him after she was threatened with death.
The learned magistrate considered the evidence and convicted the appellant in count I and sentenced him to imprisonment for a term of 10 years but acquitted him in Count II. However, he did not make any finding on Count III.
The appellant filed the petition of appeal dated the 19/09/2024 praying that the appeal be allowed and conviction be quashed and the sentence be set aside. He listed the following grounds of appeal;
The learned magistrate erred in law and in fact in convicting and sentencing the appellant when the prosecution did not prove it’s case beyond reasonable doubt.
The learned magistrate erred in law and in fact in failing to give the appellant the benefit of doubt which he was clearly entitled to.
The learned magistrate erred in law and in fact by relying on evidence which was contradictory.
That the proceedings were conducted in a language that he did not understand and that the language used was not recorded in the proceedings.
The appeal was disposed of by way of written submissions. From the evidence on record and the submissions, the following are the issues for determination;
Whether the prosecution proved the case against the appellant beyond any reasonable doubt.
Whether the trial was conducted in a Language that the appellant did not understand.
Whether the prosecution’s case was riddled with inconsistencies.
Whether the sentence was excessive.
The appellant was charged with the offence of rape. The same is defined in Section 3 (1) of the Sexual Offences Act, No. 3 of 2006 as follows;

3.1 A person commits the offence termed as rape if;

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.

c) the consent is obtained by force or by means of threat or intimidation of any kind.

On whether the appellant was properly identified, it was the evidence of PW1 that the appellant found her fetching water at about 5 – 6 o’clock in the evening and pulled her under garment from under her skirt as she bent to fetch water. He pushed her into the bush and raped her and thereafter assisted her in carrying the water jerricans up to the farm where they found PW2 and PW3. That PW1 told them that she had been raped by the appellant. It was during the day and PW1 was able to recognize the appellant and in any event, the appellant and PW1 did not part ways from the time of the incident up to the time the appellant was arrested. The appellant was arrested a few meters from the river where he raped PW1 and therefore, the circumstances of recognition were positive and there was no chance whatsoever of mistaken identity.
On penetration, Section 2 of the Sexual Offence Act No.3 of 2006 defines penetration as; the partial or complete insertion of the genital organs of a person into the genital organs of another person. PW1 in her evidence, gave graphic details of how she was raped by the appellant. PW4 the Clinical Officer who examined PW1 produced the P3 and PRC forms as exhibits. He observed that she had multiple scratch marks on both thighs and multiple bruises on both knees. He opined that the injuries on the knees, and the thighs were consistent with rape. With this evidence, the element of penetration was proved.
On the issue of consent, under section 42 of the Sexual Offences Act, a person is said to have consented if they do so voluntarily and have the freedom and capacity to do so. Section 43 sets out the acts that amount to both, intentional and unlawful acts. The Court of appeal in the case of R Vs. Oyier (1985) eKLR articulated what amounts to consent where it held;

“The lack of consent is an essential element of the crime of rape. The mens rea in rape is primarily an intention and is primarily an intention and not a state of mind. The mental element is to have intercourse without consent or not caring whether the woman consented or not.

To prove the mental element required in rape, the prosecution had to prove that the complainant physically resisted or if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist”

In this case, the appellant threatened her not to scream and he was armed with a sword. He threatened to kill the complainant and it is for that reason that the complainant could not scream for help. From the evidence of PW4 the complainant sustained injuries on both thighs and both knees which was a sign of struggle between her and the appellant during the incident.
In the case of Charles Ndirangu Vs. R (2016) eKLR the Court discussed the issue of consent and stated that it may be either expressed or implied depending upon the nature and circumstances of the case. Any skeptism regarding consent is dispelled by the facts of the case, the type of injuries, the complainant suffered, the fact that the complainant immediately informed PW2 and PW3 and then sought treatment and reported the incident to the Police. All of those elements make it abundantly evident that there was no consent.
On whether the trial was conducted in a language that the appellant did not understand, I have perused the record of proceedings and I note that the plea was taken in a language that he understood. He participated in the whole trial and at no point did he complain of the language that was used. The witnesses testified in Kiswahili Language and the record shows as much.
On whether there were inconsistencies in the evidence of the prosecution, the Court in the case of Njuki Vs. Republic 2002 IKLR 77 had this say about inconsistencies in evidence of witnesses;

“in certain criminal cases, particularly those which involve many witnesses, discrepancies are in many instances inevitable. What is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused…. However, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a Court is entitled to overlooking those discrepancies and proceed to convict the accused”.

In this case, I find that the discrepancies were not material as to affect the credibility of witnesses.

On sentence, it is trite that an appellate court will only interfere with the sentence of the trial court if, there is an error of principle. Section 3(3) of the Sexual Offences Act stipulates a sentence of imprisonment for a term of not less than ten years which the Court can enhance imprisonment for life. The appellant was given the minimum sentence. He has not convinced the Court of any error in Principle on the part of the trial Court in imposing the sentence of 10 years.
In the end, I find that the appeal has no merits and I hereby dismiss the same.
It is so ordered.

Delivered, dated and signed at Embu this 4^th day of December, 2024.