This is a Judgment in Criminal Appeals No. E051 of 2023 Erick Mudavadi Keronge Vs Republic and E057 of Erick E Nyandika Nyangaresi 2023 V Republic against conviction and sentence by Hon. P. Biwott (SPM) in Ogembo Criminal case no. E072 of 2022.
I have taken the liberty to consolidate the appeals for the purposes of judgment for uniformity and good order.
Erick Mudavadi Keronge, Dominic Mose Keronge, Erick Nyandika Nyangaresi and William Mose Ongori (hereinafter referred to as the 1st, 2nd and 3rd appellants respectively were each charged with the offence of Gang rape contrary to Section 10 of the Sexual Offences Act in Ogembo Magistrates Court Criminal Case no. E072 of 2022.
They were alleged to have gang raped J.K an adult woman without her consent. They denied the charges and the case proceeded to full hearing. Each of them was subsequently convicted and sentenced to serve 10 years imprisonment.
The appellants filed similar grounds of appeal herein and faulted the trial magistrate for convicting him despite the fact that he was not a perpetrator, that he and complainant had a long standing dispute and hence the case was malicious, the investigation was scanty, the 4th accused confessed to have committed the offence after conviction and that the sentence was harsh.
The 2nd appellant submitted that his only mistake herein was to drink alcohol and that it was 4th accused who went to his home with complainant and bought 2 litres of chang’aa and they left. The State submitted that the complainant positively identified her assailants whom she had seen earlier that day while drinking chang’aa and that this was a case of recognition as she knew her assailants before. Also that the sentence was below the minimum 15 years provided for under section 10 of the Sexual Offences Act which also provides for enhancement to life.
I have carefully re-evaluated the entire evidence on record and the submissions. Section 10 of the Sexual Offences Act, provides as follows:-“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 the offence termed gang rape and is liable upon conviction to imprisonment for a term of not less than 15 years but which may be enhanced to life imprisonment.”. In the case of Francis Matonda Ogeto versus Republic (2019) eKLR wherein the court held that.’’ Under Section 10 of the Sexual Offences Act, the ingredients of gang rape are rape or defilement under the Act; committed in association with others or committed in the company of another or others who commit the offence of rape or defilement with common intention. It is therefore clear that defilement which is committed in association with others or with common intention notwithstanding the fact that the accused may not have defiled the victim amounts to gang rape according to the said section. It therefore matters not whether the offence was rape or defilement as long as the conditions under Section 10 are found to exist.’’
It is thus clear that the ingredients of the offence of gang rape are that:
a. Unlawful penetration.
b. Identification.
c. The same must have been committed in association or company of others
d. common intention.
On whether there was penetration PW1 testified that 6 people penetrated her. This is supported by the medical evidence and is not disputed.
On identification, PW1 told the court that Dominic Mose (who was accused no. 1 in the lower court), Erick Nyandika Nyangeresi (2nd appellant) and William Mose (former accused no. 4) are among the people who waylaid her. She said Erick Mudavadi (1st appellant) was among those who were drinking alcohol in the home where she went to. Pw1 said she knew the 1st appellant well and this was confirmed by the 1st appellant in his grounds of appeal when he said that he and PW1 had a grudge before and hence the fabrication. Pw1 in her evidence in chief did not state the role played by Erick the 1st appellant herein and whether he was at the scene or not. She only placed him in the home where she found him drinking chang’aa. Pw2 mentioned nicknames which he alleged were mentioned by PW1 but there is no nexus between those names and appellants herein, Dominic and William. The investigating officer also did not link 1st appellant to the offence. I find that Erick Mudavadi was not placed at the scene of crime.
On 2nd appellant’s case, PW1 said she saw him in the home drinking chang’aa and that he was one of the people who waylaid and raped her. She said she knew him well before the incident. On his part the 2nd appellant testified that this was a case of fabrication. Pw1 said that the incident was at about 6.00pm and that there was still light which is not disputed. This court takes judicial notice that darkness does not set in by 6.00pm in Kenya. Pw1 had a clear opportunity to see her assailants who were not strangers to her well and I do not see any reason why Pw1 would have lied against the 2nd appellant all. She was firm and consistent as to the occurrence of the incident and the identity of her assailant. I find that 2nd appellant was properly placed at the scene.
On whether 2nd appellant acted in association or in company of others. Pw1 said she was gang raped in turns by 6 men led by kijiko and that 2 were at large. Dominic and William who were among them were convicted and are serving sentences. It is clear that 2nd appellant acted in association with the said others in raping the victim herein.
On whether the assailants of PW1 had a common intention, it is clear that the assailants of PW1 were all drinking chang’aa at the home of one Osoro and they later left and waylaid her and raped her in turns. It is clear that they had a common intention to rape her.
On whether the charge is properly drawn, the charges indicate that the offences were committed “jointly with others”. A sexual act of rape cannot be committed jointly with another but in association or in company of another or others as was held in the case of Francis Matonda Ogeto versus Republic (2019) eKLR(Supra). This omission however does not go to the root of the case as it is curable under Article 159 (2) (d) of the Constitution of Kenya as each appellant /accused was charged separately, they all cross examined the complainant and thus no prejudice would be occasioned to them.
In the upshot I find that the conviction of 1st appellant Erick Mudavadi was not proper and I proceed to quash his conviction and sentence. The 2nd appellant Erick Nyandika Nyangaresi, he was properly convicted and I proceed to uphold the conviction. On his sentence the State submitted that the sentence was below the minimum 15 years provided for by the law which may be enhanced. The position espoused by the State is true under section 10 of the Sexual Offences Act. When this case came up for directions on 17.10.24, this court warned the 2nd appellant of the possibility of enhancement of the sentence if the appeal does not succeed.
In Supreme Court Petition No. E018 of 2023; Republic vs Joshua Gichuki Mwangi the Apex court observed as follows;
[66] We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.
[67] This is why, even in the Muruatetu case, this Court was keen to still defer to the Legislature as the proper body mandated to legislate. While the courts have the mandate to interpret the law and where necessary strike out a law for being unconstitutional, this mandate does not extend to legislation or repeal of statutory provisions. In that regard, we echo with approval the words of the High Court in the case of Trusted Society of Human Rights v Attorney-General and others, High Court Petition No 229 of 2012; [2012] eKLR, at paragraphs 63-64 where it held as follows:
“Although the Kenyan Constitution contains no explicit clause on separation of powers, the Montesquieuian influence is palpable throughout the foundational document, the Constitution, regarding the necessity of separating the Governmental functions. The Constitution consciously delegates the sovereign power under it to the three branches of Government and expects that each will carry out those functions assigned to it without interference from the other two.”
We reiterate the above exposition of the law and the answer to the two questions under consideration is that, unless a proper case is filed and the matter escalated to us in the manner stated above, a declaration of unconstitutionality cannot be made in the manner the Court of Appeal did in the present case.
[68] Our findings hereinabove effectively lead us to the conclusion that the judgment of the Court of Appeal delivered on 7th October, 2022 is one for setting aside. In any case, the sentence imposed by the trial court against the Respondent and affirmed by the first appellate court was lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid. We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence.”
I am well guided by the aforesaid decision of the Supreme Court on the Minimum Sentences in the Sexual Offences Act which is binding on this court. The intention of the Legistlature was clear in enacting the minimum sentences in Sexual Offences; i.e to curb the upsurge of the Sexual Offences in Kenya. I have reviewed the Lower Court record herein and I find that the sentence of 10 years for the offence of gang rape contrary to Section 10 of the Sexual Offences Act is thus illegal for being below the minimum sentence of 15 years provided for by law.
This court has discretion to reduce or enhance sentences is found in Section 354 (3) (ii) of the CPC. This discretion must however be exercised judiciously. Section 354(3)(ii) of the CPC which provides that: -
“(3) The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may -
(ii) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or increase the sentence;”
I proceed to substitute the sentence of Erick Nyandika Nyangeresi of 10 years with 15 years imprisonment as provided for by law. Erick Mudavadi Keronje is set free unless otherwise lawfully held.
14 days Right of appeal.
Delivered in the presence of: -
Koima for State
Both appellants
Court Assistant: Oigo
I have taken the liberty to consolidate the appeals for the purposes of judgment for uniformity and good order.
Erick Mudavadi Keronge, Dominic Mose Keronge, Erick Nyandika Nyangaresi and William Mose Ongori (hereinafter referred to as the 1st, 2nd and 3rd appellants respectively were each charged with the offence of Gang rape contrary to Section 10 of the Sexual Offences Act in Ogembo Magistrates Court Criminal Case no. E072 of 2022.
They were alleged to have gang raped J.K an adult woman without her consent. They denied the charges and the case proceeded to full hearing. Each of them was subsequently convicted and sentenced to serve 10 years imprisonment.
The appellants filed similar grounds of appeal herein and faulted the trial magistrate for convicting him despite the fact that he was not a perpetrator, that he and complainant had a long standing dispute and hence the case was malicious, the investigation was scanty, the 4th accused confessed to have committed the offence after conviction and that the sentence was harsh.
The 2nd appellant submitted that his only mistake herein was to drink alcohol and that it was 4th accused who went to his home with complainant and bought 2 litres of chang’aa and they left. The State submitted that the complainant positively identified her assailants whom she had seen earlier that day while drinking chang’aa and that this was a case of recognition as she knew her assailants before. Also that the sentence was below the minimum 15 years provided for under section 10 of the Sexual Offences Act which also provides for enhancement to life.
I have carefully re-evaluated the entire evidence on record and the submissions. Section 10 of the Sexual Offences Act, provides as follows:-“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 the offence termed gang rape and is liable upon conviction to imprisonment for a term of not less than 15 years but which may be enhanced to life imprisonment.”. In the case of Francis Matonda Ogeto versus Republic (2019) eKLR wherein the court held that.’’ Under Section 10 of the Sexual Offences Act, the ingredients of gang rape are rape or defilement under the Act; committed in association with others or committed in the company of another or others who commit the offence of rape or defilement with common intention. It is therefore clear that defilement which is committed in association with others or with common intention notwithstanding the fact that the accused may not have defiled the victim amounts to gang rape according to the said section. It therefore matters not whether the offence was rape or defilement as long as the conditions under Section 10 are found to exist.’’
It is thus clear that the ingredients of the offence of gang rape are that:
a. Unlawful penetration.
b. Identification.
c. The same must have been committed in association or company of others
d. common intention.
On whether there was penetration PW1 testified that 6 people penetrated her. This is supported by the medical evidence and is not disputed.
On identification, PW1 told the court that Dominic Mose (who was accused no. 1 in the lower court), Erick Nyandika Nyangeresi (2nd appellant) and William Mose (former accused no. 4) are among the people who waylaid her. She said Erick Mudavadi (1st appellant) was among those who were drinking alcohol in the home where she went to. Pw1 said she knew the 1st appellant well and this was confirmed by the 1st appellant in his grounds of appeal when he said that he and PW1 had a grudge before and hence the fabrication. Pw1 in her evidence in chief did not state the role played by Erick the 1st appellant herein and whether he was at the scene or not. She only placed him in the home where she found him drinking chang’aa. Pw2 mentioned nicknames which he alleged were mentioned by PW1 but there is no nexus between those names and appellants herein, Dominic and William. The investigating officer also did not link 1st appellant to the offence. I find that Erick Mudavadi was not placed at the scene of crime.
On 2nd appellant’s case, PW1 said she saw him in the home drinking chang’aa and that he was one of the people who waylaid and raped her. She said she knew him well before the incident. On his part the 2nd appellant testified that this was a case of fabrication. Pw1 said that the incident was at about 6.00pm and that there was still light which is not disputed. This court takes judicial notice that darkness does not set in by 6.00pm in Kenya. Pw1 had a clear opportunity to see her assailants who were not strangers to her well and I do not see any reason why Pw1 would have lied against the 2nd appellant all. She was firm and consistent as to the occurrence of the incident and the identity of her assailant. I find that 2nd appellant was properly placed at the scene.
On whether 2nd appellant acted in association or in company of others. Pw1 said she was gang raped in turns by 6 men led by kijiko and that 2 were at large. Dominic and William who were among them were convicted and are serving sentences. It is clear that 2nd appellant acted in association with the said others in raping the victim herein.
On whether the assailants of PW1 had a common intention, it is clear that the assailants of PW1 were all drinking chang’aa at the home of one Osoro and they later left and waylaid her and raped her in turns. It is clear that they had a common intention to rape her.
On whether the charge is properly drawn, the charges indicate that the offences were committed “jointly with others”. A sexual act of rape cannot be committed jointly with another but in association or in company of another or others as was held in the case of Francis Matonda Ogeto versus Republic (2019) eKLR(Supra). This omission however does not go to the root of the case as it is curable under Article 159 (2) (d) of the Constitution of Kenya as each appellant /accused was charged separately, they all cross examined the complainant and thus no prejudice would be occasioned to them.
In the upshot I find that the conviction of 1st appellant Erick Mudavadi was not proper and I proceed to quash his conviction and sentence. The 2nd appellant Erick Nyandika Nyangaresi, he was properly convicted and I proceed to uphold the conviction. On his sentence the State submitted that the sentence was below the minimum 15 years provided for by the law which may be enhanced. The position espoused by the State is true under section 10 of the Sexual Offences Act. When this case came up for directions on 17.10.24, this court warned the 2nd appellant of the possibility of enhancement of the sentence if the appeal does not succeed.
In Supreme Court Petition No. E018 of 2023; Republic vs Joshua Gichuki Mwangi the Apex court observed as follows;
[66] We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.
[67] This is why, even in the Muruatetu case, this Court was keen to still defer to the Legislature as the proper body mandated to legislate. While the courts have the mandate to interpret the law and where necessary strike out a law for being unconstitutional, this mandate does not extend to legislation or repeal of statutory provisions. In that regard, we echo with approval the words of the High Court in the case of Trusted Society of Human Rights v Attorney-General and others, High Court Petition No 229 of 2012; [2012] eKLR, at paragraphs 63-64 where it held as follows:
“Although the Kenyan Constitution contains no explicit clause on separation of powers, the Montesquieuian influence is palpable throughout the foundational document, the Constitution, regarding the necessity of separating the Governmental functions. The Constitution consciously delegates the sovereign power under it to the three branches of Government and expects that each will carry out those functions assigned to it without interference from the other two.”
We reiterate the above exposition of the law and the answer to the two questions under consideration is that, unless a proper case is filed and the matter escalated to us in the manner stated above, a declaration of unconstitutionality cannot be made in the manner the Court of Appeal did in the present case.
[68] Our findings hereinabove effectively lead us to the conclusion that the judgment of the Court of Appeal delivered on 7th October, 2022 is one for setting aside. In any case, the sentence imposed by the trial court against the Respondent and affirmed by the first appellate court was lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid. We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence.”
I am well guided by the aforesaid decision of the Supreme Court on the Minimum Sentences in the Sexual Offences Act which is binding on this court. The intention of the Legistlature was clear in enacting the minimum sentences in Sexual Offences; i.e to curb the upsurge of the Sexual Offences in Kenya. I have reviewed the Lower Court record herein and I find that the sentence of 10 years for the offence of gang rape contrary to Section 10 of the Sexual Offences Act is thus illegal for being below the minimum sentence of 15 years provided for by law.
This court has discretion to reduce or enhance sentences is found in Section 354 (3) (ii) of the CPC. This discretion must however be exercised judiciously. Section 354(3)(ii) of the CPC which provides that: -
“(3) The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may -
(ii) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or increase the sentence;”
I proceed to substitute the sentence of Erick Nyandika Nyangeresi of 10 years with 15 years imprisonment as provided for by law. Erick Mudavadi Keronje is set free unless otherwise lawfully held.
14 days Right of appeal.
Delivered in the presence of: -
Koima for State
Both appellants
Court Assistant: Oigo