(Being an appeal against conviction and sentence in Madiany PM’s Court, Criminal case No. SOE006/2023, Hon. Erick Malesi, delivered on 2/5/2023 and sentence on 16/5/2023)
The Appellant, Haggai Asol, was charged before the lower court with the offence of Rape contrary to Section 3 (1) (a) (b) as read with Section 3 (3) of the Sexual Offences Act, No. 3 of 2006. The particulars of the charge were that on 29/1/2023 at 10.00 Hrs at Luoro village, South Ramba sub-county in Rarieda sub-county within Siaya County, he intentionally and unlawfully caused his penis to penetrate the vagina of E.A without her consent.
The Appellant faced an alternative charge of committing an indecent act with an adult contrary to Section 11 (A) of the Sexual Offences Act, No. 3 of 2006. That on 29/1/2023, at 10.00 Hrs at Luoro village, South Ramba sub-location in Rarieda sub-county within Siaya County, he intentionally and unlawfully touched the vagina of E.A with his penis against her will.
Upon entering plea of not guilty to both the main charge and the alternative charge, the case of the Appellant proceeded to hearing. The Appellant was eventually convicted on the main charge and sentenced to serve 10 years imprisonment. This was on 16/5/2023.
He has now appealed to this court in the Petition of Appeal filed herein on 24/5/2023, the Appellant has listed the following grounds of appeal.
- THAT the trial court failed to observe that nothing linked him with the alleged offence.
- THAT the trial court failed to observe that the sentence imposed was against the evidence adduced.
- THAT, the trial court failed to appreciate that the sentence imposed was unconstitutional due to its mandatory nature.
- THAT the prosecution’s case was full of contradictions hence unsafe to base a conviction.
This court is seized of this case as a first appellate court. The jurisdiction of a first appellate court is well settled. In the case of Okeno -Vs- R (1972) EA 32 at Page 36, the court of Appeal East Africa held:
“The first appellate court must itself weigh conflicting evidence and draw its own conclusions…. It must make its own findings and draw its own conclusions.
It is therefore necessary that as a first appellate court, this court must re-evaluate the evidence tendered before the trial court and to reach its conclusion of course bearing in mind that this court has not had the benefit of seeing the witnesses.
From the record of the proceedings the case of the prosecution against the appellant commenced with the evidence of PW1 Kelvin Otieno, a brother to the complainant, Everlne Awour. His testimony was that the complainant is mentally challenged and only speaks to people who are close to her. That on 29/1/2023 at about 10.00 am, she left for church. The witness then saw a motor cycle stop and the rider talking to the complainant. On inquiry, the rider told the witness that he wanted to carry her to church. He told the rider that she normally goes to church on foot. She then disembarked from the motor cycle and started walking to church. Meanwhile, the rider told the witness that he is Haggai Asol from Akala. The rider then left. The witness followed the complainant to church but did not find her. He was told she had not been to church but had been seen on a motor cycle going past the church. He searched for her in vain and later sought assistance of church members after giving out the name of the rider.
That the search team proceeded to Akala where they were led to a house where they found the rider Haggai whom he recognized as the rider he had spoken to earlier. He led team to a home where they found the complainant. She was standing beside a motor cycle in a loosened skirt and bra. They reported the matter to the police and took complainant to Bondo sub-county Hospital. This witness identified the hospital treatment notes, the P3 form and the PRC forms that were filled for the complainant. He identified Haggai Asol as the accused before court.
On cross examination, he reconfirmed his evidence and added that he did not take the make or the registration number of the motor cycle.
The complainant herself, with PW1 as intermediary, gave an unsworn evidence that she was on her way to church when she was cornered by a man on a motor cycle. She pointed to the accused as the man. And she was taken to hospital but that nothing had been done to her.
PW3 Pamela Akumu Otieno knows both PW1 and PW2. She was one of the church members who volunteered to search for the complainant. She confirmed how the complainant was found. And PW4 Joseph Otieno, an uncle to both PW1 and PW2, was also part of the search team who managed to trace the complainant.
Jared Obiero Oloo, PW5, clinical officer of Bondo sub-county hospital gave evidence on the treatment of the complainant when presented to the hospital. His evidence was that she had scratch marks on her thighs and also inflammation of the vagina orifice. Also vaginal discharge which was foul smelling. And spermatozoa was detected. He had concluded that the complainant had been raped. He produced as exhibits the P3 form, the PRC form and the treatment notes.
Further exhibits, being a skirt, blouse and petticoat were produced by PW1 when he was recalled.
The last witness was PC woman Alice Ochieng of Ndori police station, whose evidence was that on 30/1/2023, she had received the report of this matter. She also received the accused from police of Akala police station and also the exhibits. She later preferred charges against the accused.
When put to his own defence, the accused chose to give an unsworn defence in which he stated that he is a boda boda rider. That 3 people found him eating and took him to the boda boda stage and accused of demanding money by force. He was then taken to Akala police station and transferred to Ndori police station. That police asked for money from him which he did not have. He was later charged. He called no witness.
The accused faces a charge of rape contrary to Sesction 3 (1) of the Sexual Offences Act. The said Section Provides:-
“A person commits an offence termed rape if:-
- He or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;
- 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.
The above definition of the offence captures the ingredients of the offence of rape. The issue is whether the prosecution managed to prove the same. With regards to element of penetration, the prosecution called PW5, Jared Obiero Oloo, the clinical officer who examined the victim. This witness noted that on examination, the complainant had scratch marks on her thighs and inflammation of the vagina orifice. He also noted vaginal discharge which was foul smelling. Notably, the presence of spermatozoa was noted on the complainant. The evidence of this witness was not challenged in any way by the accused, leaving no doubt that the prosecution duly proved this element of penetration.
So, was the penetration unlawful in view of the fact that the complainant was of majority age. The answer to this lies with the evidence of the prosecution witnesses, PW1, 2, 3, 4 and 5 that this complainant is mentally challenged. In fact, the testimony of the complainant (PW2) was taken through an intermediary, PW1. This is a fact that confirms the mental status of the complainant.
I have perused the judgment of the trial magistrate and note that the court correctly applied the standards required on the issue of consent with regard to ability to give the same by the complainat. The case of R –VS- OYIER (1985) KLR 353 (C.O.A), relied on by the court gives the position that:
- The lack of consent is an essential element of the crime of rape. The mens rea in rape is primarily an intention and not a state of mind. The mental element is to have intercourse without consent and 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 not.
- Where a woman yields through fear of death, or through duress, it is rape and it is no excuse that the woman consented first, if the offence was afterwards committed by force or against her will, nor is it any excuse that she consented after the fact.”
The complainant herein without a doubt suffers from mental infirmity. She was even unable to give her testimony in person in court and an intermediary had to be used to relay her evidence. With that mental infirmity, the complainant, this court is convinced, was not competent or capable of consenting to the act. She had no capacity to give consent. The action of the accused in having sexual intercourse with the complainant who obviously lacked capacity to give consent makes the action by the accused unlawful.
An issue arises on whether the accused was properly identified as the perpetrator of the offence. The prosecution called a couple of witnesses in this regard. PW1 had earlier in the day seen the accused talk to the complainant. He proceeded to talk to the accused who gave him his name and where he comes from. It is these details that the search team relied on to trace the accused. It is even the accused himself, who upon being located, led the search team to where the complainant was. The accused has not denied any of these facts. This court is accordingly therefore convinced that it is the accused before court, and no one else, who raped the complainant.
When the accused was put to his own defence, he gave an unsworn defence in which he only dwelt on how he was arrested and how the police demanded money from him before he was charged. The accused had absolutely no defence to the allegations made against him by the prosecution witnesses which point to him as the one who raped the complainant. With respect, I do not find any merit in the defence of the accused. I dismiss it.
Lastly on the issue of sentence, Section 3 (3) of the Sexual Offences Act, No. 3/2006 reads:-
“ A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than 10 years but which may be enhanced to imprisonment for life.”
The accused herein was sentenced to serve 10 years imprisonment. I find this sentence legal, proper and not excessive in any way. The Appellant’s appeal against the sentence therefore lacks any merit and I dismiss same.
The sum total is that I find no merit at all in this appeal. I dismiss the same wholly and order that the appellant serves out his sentence as ordered by the trial court.
I only add that pursuant to Section 333 (2) of the Criminal Procedure Code, the sentence of the Appellant shall run from 13/2/2023 the date Appellant was first arraigned in court.
Orders accordingly.
Dated, signed and Delivered at Siaya this 11th Day of April, 2024.
D.O. OGEMBO
JUDGE
11/4/2024
Court
Judgment read out in Open Court in presence of Appellant and Mr. Baraza for State.
D.O. OGEMBO
JUDGE
11/4/2024