Background
1. The Appellant was initially charged with rape contrary to Section 3(1), as read with Section 3(3), of the Sexual Offences Act. On 31st May 2022, after the prosecution witnesses had testified, the charge was amended to “rape of a person with mental disability contrary to Section 7 of the Sexual Offences Act.”
2. The particulars were that on 20th December 2020, at about 4.00 p.m. at Gaturi Village in Murang’a County, the Appellant intentionally caused his penis to penetrate the vagina of A.W.M., a person with mental disability, without her consent.
3. In the alternative, he was charged with committing an indecent act with an adult contrary to Section 11A of the Sexual Offences Act.
4. The Appellant was convicted on the principal count and sentenced to ten years’ imprisonment. The alternative count was held in abeyance.
5. His appeal challenges both conviction and sentence on the grounds that the charge was defective; the complainant did not testify; her mental condition was not medically established; penetration, consent and identification were not proved; his alibi was disregarded; and time spent in custody was not credited under Section 333(2) of the Criminal Procedure Code.
6. The Respondent conceded that Section 7 did not accord with the evidence. It nevertheless submitted that the particulars and evidence established rape under Section 3 and urged the Court to substitute the conviction rather than acquit the Appellant.
7. As a first appellate court, this Court must reconsider and re-evaluate the evidence and reach its own conclusions, bearing in mind that it did not see or hear the witnesses. See Okeno v Republic [1972] EA 32.
8. PW1, the complainant’s daughter, testified that the complainant was elderly and had been seriously unwell for approximately seven years. She could neither walk nor speak, had poor memory and depended upon her family for daily care.
9. PW2, the complainant’s husband and the Appellant’s uncle, left her seated at home and went to buy vegetables. On returning, he did not find her where he had left her. He heard sounds near the kitchen and found the Appellant lying on her. Her clothes were raised, her legs were on the Appellant’s shoulders, and his trousers were lowered.
10. When PW2 raised an alarm, the Appellant held up his trousers and fled. PW2 pursued him briefly before returning to assist the complainant.
11. PW3 responded to PW2’s screams and found the complainant lying outside. PW4 assisted in taking her to hospital.
12. PW5, the Clinical Officer, observed bruising and minor lacerations to the complainant’s labia majora, together with a smelly vaginal discharge. Laboratory examination disclosed infection, pus cells and bacteria. He also observed that the complainant had a psychiatric condition and could neither speak nor recognize people.
13. PW6, the investigating officer, subsequently found the complainant unable to walk, speak or respond to her surroundings.
14. In his unsworn defence, the Appellant denied the offence and claimed that he was working with DW2 on the material day. DW2 stated that they worked together in the morning, separated, and met again in the evening.
16. Section 7 of the Sexual Offences Act criminalizes rape or an indecent act committed with another person within the view of a family member, child or person with mental disability. It does not create an offence described as “rape of a person with mental disability.”
17. No evidence established that the act was committed within the view of any person contemplated under Section 7. The complainant’s own incapacity could not, by itself, bring the offence within that provision.
18. In Jason Akumu Yongo v Republic [1983] KLR 319, the Court of Appeal held that a charge is defective where it does not accord with the evidence or charges an offence not disclosed by that evidence.
19. However, Section 179(2) of the Criminal Procedure Code permits conviction for a minor and cognate offence established by the evidence. Section 354(3)(a)(ii) empowers an appellate court to alter the finding, while Section 382 protects a conviction from an error that has not caused a failure of justice.
20. In Robert Mutungi Muumbi v Republic [2015] eKLR and Ali Mohammed Hassani Mpanda v Republic [1963] EA 294, the courts held that substitution is permissible where the substituted offence is cognate, its ingredients are included in the offence charged, and the accused had notice of and an opportunity to answer the relevant facts.
21. The particulars consistently alleged intentional penile penetration of the complainant without her consent. Those are the essential ingredients of rape under Section 3(1) of the Sexual Offences Act. Rape is also expressly incorporated as an ingredient of the aggravated offence under Section 7.
22. The Appellant cross-examined the witnesses on penetration, consent and identification and presented an alibi. He therefore understood and answered the factual case against him. The defect lay in the statutory provision cited, not in the factual allegation communicated to him.
23. In Sigilani v Republic [2004] 2 KLR 480 and JMA v Republic [2009] KLR 671, the Court of Appeal held that a defective charge is not necessarily fatal where its particulars sufficiently inform the accused of the case and no prejudice or miscarriage of justice results.
24. When the charge was amended, it was read and explained to the Appellant, who pleaded not guilty. The trial court did not record that it informed him of his right under Section 214(1) of the Criminal Procedure Code to recall witnesses.
25. In Samuel Kilonzo Musau v Republic, Criminal Appeal No. 153 of 2013, the Court of Appeal held that recall is at the instance of the accused. Although informing an unrepresented accused of that right is good practice, failure to do so does not automatically invalidate a trial unless prejudice is demonstrated.
26. The factual allegation remained unchanged. The Appellant extensively cross-examined PW1, PW2 and PW5, some of whom were recalled at his instance. His defence was a complete denial of the alleged sexual act. No prejudice or failure of justice was occasioned.
27. Section 3(1) of the Sexual Offences Act requires proof of intentional and unlawful penetration, absence of consent, and the identity of the perpetrator. See Republic v Oyier [1985] KLR 353 and Erick Onyango Ondeng v Republic [2014] eKLR.
28. On the issue of penetration, PW2 found the Appellant lying on the complainant, with her clothes raised, her legs on his shoulders and his trousers lowered. He described the Appellant as sexually penetrating her.
29. That direct evidence was supported by medical findings of bruising and lacerations to the labia majora shortly after the incident.
30. The absence of spermatozoa was not fatal. In Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal held that spermatozoa are not essential because penetration may occur without ejaculation. Charles Wamukoya Karani v Republic [2010] eKLR further confirms that penetration may be established by credible oral evidence and surrounding circumstances.
31. Penetration was proved beyond reasonable doubt.
32. Under Section 42 of the Sexual Offences Act, a person consents only where he or she agrees by choice and has the freedom and capacity to make that choice.
33. PW1, PW2, PW5 and PW6 consistently described the complainant as unable to speak, walk independently or comprehend her surroundings. Her condition was also personally observed by the trial court.
34. Although no formal psychiatric assessment identifying a specific diagnosis was produced, such a diagnosis was unnecessary to prove rape under Section 3. The relevant question was whether the complainant had the capacity and freedom to consent.
35. Her profound physical and cognitive incapacity, the position in which PW2 found her and the genital injuries excluded any reasonable inference of free and voluntary consent. In Republic v Oyier, the Court of Appeal held that absence of consent may be inferred from the complainant’s condition, injuries and surrounding circumstances.
36. Absence of consent was therefore proved.
37. On the issue of identification, PW2 knew the Appellant as his nephew. The incident occurred at about 4.00 p.m. and PW2 observed him at close range before pursuing him as he fled.
38. This was recognition rather than identification of a stranger. In Anjononi & Others v Republic [1980] KLR 59, the Court of Appeal held that recognition of a person already known to a witness is generally more reliable than identification of a stranger.
39. The alleged family or land dispute was not established as a credible reason for PW2 to fabricate such a serious allegation involving his incapacitated wife.
40. PW3’s evidence that the complainant appeared dressed when she arrived differed from PW2’s account that she had been left exposed. That discrepancy concerned the complainant’s appearance after the Appellant had fled and did not displace PW2’s direct evidence or the medical findings.
41. As stated in Twehangane Alfred v Uganda [2003] UGCA 6, minor contradictions are not fatal unless they go to the root of the prosecution case. This discrepancy was peripheral.
42. The complainant did not give substantive evidence because of her condition. That did not render the remaining evidence incapable of supporting a conviction.
43. Under Section 143 of the Evidence Act, no particular number of witnesses is required to prove a fact. Keter v Republic [2007] 1 EA 135 affirms that the prosecution need only call witnesses sufficient to prove its case.
44. The proviso to Section 124 of the Evidence Act was inapplicable because the conviction did not rest upon uncorroborated evidence from the complainant. It rested upon PW2’s direct evidence, the medical findings and the surrounding circumstances.
45. I am satisfied that the Appellant was positively recognized as the perpetrator.
46. Looking at the question of alibi, an accused who raises an alibi bears no burden of proving it. The prosecution must displace it through evidence establishing his presence at the scene. See Kiarie v Republic [1984] KLR 739 and Victor Mwendwa Mulinge v Republic [2014] eKLR.
47. The Appellant claimed that he remained with DW2 throughout the day. DW2 stated that they separated after the morning work and only met again in the evening. He could not account for the Appellant’s whereabouts when the offence was committed.
48. PW2’s direct recognition placed the Appellant at the scene and displaced the alibi beyond reasonable doubt.
49. The evidence proved intentional and unlawful penetration of the complainant without her consent by the Appellant. It established rape contrary to Section 3(1), as read with Section 3(3), of the Sexual Offences Act.
50. Applying Sections 179(2), 354(3)(a)(ii) and 382 of the Criminal Procedure Code, and guided by Robert Mutungi Muumbi, Ali Mohammed Hassani Mpanda and Samuel Kilonzo Musau, substitution of the conviction will not occasion prejudice or a failure of justice.
51. The conviction under Section 7 is accordingly set aside and substituted with a conviction for rape contrary to Section 3(1), as read with Section 3(3), of the Sexual Offences Act.
52. On the question of sentence, Section 3(3) of the Sexual Offences Act prescribes imprisonment for a term of not less than ten years, which may be enhanced to life imprisonment.
53. An appellate court may interfere with sentence where the trial court acted on a wrong principle, overlooked a material factor, considered an irrelevant matter, or imposed a sentence that is manifestly excessive. See Bernard Kimani Gacheru v Republic [2002] eKLR.
54. The Judiciary Sentencing Policy Guidelines require proportionality and consideration of the offence, the offender, aggravating and mitigating circumstances, rehabilitation, deterrence, community protection and denunciation.
55. The Appellant was treated as a first offender and stated in mitigation that he assisted his parents. Against that mitigation, the complainant was elderly, physically incapacitated, cognitively impaired and wholly dependent upon her family for protection.
56. The Appellant was her close relative and took advantage of her inability to resist, communicate or seek assistance. Her vulnerability and the breach of familial trust were substantial aggravating factors. The sentence must also deter and denounce sexual exploitation of vulnerable persons.
57. The ten-year term was the lowest sentence prescribed under Section 3(3). Considering the circumstances of the offence and the offender,
it was lawful and proportionate. I find no basis for reducing it.
58. However, the record does not demonstrate that the trial court credited the period spent in custody. Section 333(2) of the Criminal Procedure Code and the Sentencing Policy Guidelines require that period to be taken into account.
59. In Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, the Court of Appeal held that the period spent in pre-trial custody must be meaningfully credited towards the sentence.
60. The Appellant was arrested on 21st December 2020 and remained in custody. His sentence shall therefore run from that date.
61. The appeal succeeds only to the limited extent of correcting the statutory basis of conviction and the commencement date of sentence.
Orders
a) The conviction for the offence described as “rape of a person with mental disability” contrary to Section 7 of the Sexual Offences Act is set aside.
b) It is substituted with a conviction for rape contrary to Section 3(1), as read with Section 3(3), of the Sexual Offences Act.
c) The sentence of ten years’ imprisonment is upheld.
d) Pursuant to Section 333(2) of the Criminal Procedure Code, the sentence shall be computed from 21st December 2020, being the date of the Appellant’s arrest and commencement of continuous custody.
It is so ordered.
1. The Appellant was initially charged with rape contrary to Section 3(1), as read with Section 3(3), of the Sexual Offences Act. On 31st May 2022, after the prosecution witnesses had testified, the charge was amended to “rape of a person with mental disability contrary to Section 7 of the Sexual Offences Act.”
2. The particulars were that on 20th December 2020, at about 4.00 p.m. at Gaturi Village in Murang’a County, the Appellant intentionally caused his penis to penetrate the vagina of A.W.M., a person with mental disability, without her consent.
3. In the alternative, he was charged with committing an indecent act with an adult contrary to Section 11A of the Sexual Offences Act.
4. The Appellant was convicted on the principal count and sentenced to ten years’ imprisonment. The alternative count was held in abeyance.
5. His appeal challenges both conviction and sentence on the grounds that the charge was defective; the complainant did not testify; her mental condition was not medically established; penetration, consent and identification were not proved; his alibi was disregarded; and time spent in custody was not credited under Section 333(2) of the Criminal Procedure Code.
6. The Respondent conceded that Section 7 did not accord with the evidence. It nevertheless submitted that the particulars and evidence established rape under Section 3 and urged the Court to substitute the conviction rather than acquit the Appellant.
7. As a first appellate court, this Court must reconsider and re-evaluate the evidence and reach its own conclusions, bearing in mind that it did not see or hear the witnesses. See Okeno v Republic [1972] EA 32.
8. PW1, the complainant’s daughter, testified that the complainant was elderly and had been seriously unwell for approximately seven years. She could neither walk nor speak, had poor memory and depended upon her family for daily care.
9. PW2, the complainant’s husband and the Appellant’s uncle, left her seated at home and went to buy vegetables. On returning, he did not find her where he had left her. He heard sounds near the kitchen and found the Appellant lying on her. Her clothes were raised, her legs were on the Appellant’s shoulders, and his trousers were lowered.
10. When PW2 raised an alarm, the Appellant held up his trousers and fled. PW2 pursued him briefly before returning to assist the complainant.
11. PW3 responded to PW2’s screams and found the complainant lying outside. PW4 assisted in taking her to hospital.
12. PW5, the Clinical Officer, observed bruising and minor lacerations to the complainant’s labia majora, together with a smelly vaginal discharge. Laboratory examination disclosed infection, pus cells and bacteria. He also observed that the complainant had a psychiatric condition and could neither speak nor recognize people.
13. PW6, the investigating officer, subsequently found the complainant unable to walk, speak or respond to her surroundings.
14. In his unsworn defence, the Appellant denied the offence and claimed that he was working with DW2 on the material day. DW2 stated that they worked together in the morning, separated, and met again in the evening.
16. Section 7 of the Sexual Offences Act criminalizes rape or an indecent act committed with another person within the view of a family member, child or person with mental disability. It does not create an offence described as “rape of a person with mental disability.”
17. No evidence established that the act was committed within the view of any person contemplated under Section 7. The complainant’s own incapacity could not, by itself, bring the offence within that provision.
18. In Jason Akumu Yongo v Republic [1983] KLR 319, the Court of Appeal held that a charge is defective where it does not accord with the evidence or charges an offence not disclosed by that evidence.
19. However, Section 179(2) of the Criminal Procedure Code permits conviction for a minor and cognate offence established by the evidence. Section 354(3)(a)(ii) empowers an appellate court to alter the finding, while Section 382 protects a conviction from an error that has not caused a failure of justice.
20. In Robert Mutungi Muumbi v Republic [2015] eKLR and Ali Mohammed Hassani Mpanda v Republic [1963] EA 294, the courts held that substitution is permissible where the substituted offence is cognate, its ingredients are included in the offence charged, and the accused had notice of and an opportunity to answer the relevant facts.
21. The particulars consistently alleged intentional penile penetration of the complainant without her consent. Those are the essential ingredients of rape under Section 3(1) of the Sexual Offences Act. Rape is also expressly incorporated as an ingredient of the aggravated offence under Section 7.
22. The Appellant cross-examined the witnesses on penetration, consent and identification and presented an alibi. He therefore understood and answered the factual case against him. The defect lay in the statutory provision cited, not in the factual allegation communicated to him.
23. In Sigilani v Republic [2004] 2 KLR 480 and JMA v Republic [2009] KLR 671, the Court of Appeal held that a defective charge is not necessarily fatal where its particulars sufficiently inform the accused of the case and no prejudice or miscarriage of justice results.
24. When the charge was amended, it was read and explained to the Appellant, who pleaded not guilty. The trial court did not record that it informed him of his right under Section 214(1) of the Criminal Procedure Code to recall witnesses.
25. In Samuel Kilonzo Musau v Republic, Criminal Appeal No. 153 of 2013, the Court of Appeal held that recall is at the instance of the accused. Although informing an unrepresented accused of that right is good practice, failure to do so does not automatically invalidate a trial unless prejudice is demonstrated.
26. The factual allegation remained unchanged. The Appellant extensively cross-examined PW1, PW2 and PW5, some of whom were recalled at his instance. His defence was a complete denial of the alleged sexual act. No prejudice or failure of justice was occasioned.
27. Section 3(1) of the Sexual Offences Act requires proof of intentional and unlawful penetration, absence of consent, and the identity of the perpetrator. See Republic v Oyier [1985] KLR 353 and Erick Onyango Ondeng v Republic [2014] eKLR.
28. On the issue of penetration, PW2 found the Appellant lying on the complainant, with her clothes raised, her legs on his shoulders and his trousers lowered. He described the Appellant as sexually penetrating her.
29. That direct evidence was supported by medical findings of bruising and lacerations to the labia majora shortly after the incident.
30. The absence of spermatozoa was not fatal. In Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal held that spermatozoa are not essential because penetration may occur without ejaculation. Charles Wamukoya Karani v Republic [2010] eKLR further confirms that penetration may be established by credible oral evidence and surrounding circumstances.
31. Penetration was proved beyond reasonable doubt.
32. Under Section 42 of the Sexual Offences Act, a person consents only where he or she agrees by choice and has the freedom and capacity to make that choice.
33. PW1, PW2, PW5 and PW6 consistently described the complainant as unable to speak, walk independently or comprehend her surroundings. Her condition was also personally observed by the trial court.
34. Although no formal psychiatric assessment identifying a specific diagnosis was produced, such a diagnosis was unnecessary to prove rape under Section 3. The relevant question was whether the complainant had the capacity and freedom to consent.
35. Her profound physical and cognitive incapacity, the position in which PW2 found her and the genital injuries excluded any reasonable inference of free and voluntary consent. In Republic v Oyier, the Court of Appeal held that absence of consent may be inferred from the complainant’s condition, injuries and surrounding circumstances.
36. Absence of consent was therefore proved.
37. On the issue of identification, PW2 knew the Appellant as his nephew. The incident occurred at about 4.00 p.m. and PW2 observed him at close range before pursuing him as he fled.
38. This was recognition rather than identification of a stranger. In Anjononi & Others v Republic [1980] KLR 59, the Court of Appeal held that recognition of a person already known to a witness is generally more reliable than identification of a stranger.
39. The alleged family or land dispute was not established as a credible reason for PW2 to fabricate such a serious allegation involving his incapacitated wife.
40. PW3’s evidence that the complainant appeared dressed when she arrived differed from PW2’s account that she had been left exposed. That discrepancy concerned the complainant’s appearance after the Appellant had fled and did not displace PW2’s direct evidence or the medical findings.
41. As stated in Twehangane Alfred v Uganda [2003] UGCA 6, minor contradictions are not fatal unless they go to the root of the prosecution case. This discrepancy was peripheral.
42. The complainant did not give substantive evidence because of her condition. That did not render the remaining evidence incapable of supporting a conviction.
43. Under Section 143 of the Evidence Act, no particular number of witnesses is required to prove a fact. Keter v Republic [2007] 1 EA 135 affirms that the prosecution need only call witnesses sufficient to prove its case.
44. The proviso to Section 124 of the Evidence Act was inapplicable because the conviction did not rest upon uncorroborated evidence from the complainant. It rested upon PW2’s direct evidence, the medical findings and the surrounding circumstances.
45. I am satisfied that the Appellant was positively recognized as the perpetrator.
46. Looking at the question of alibi, an accused who raises an alibi bears no burden of proving it. The prosecution must displace it through evidence establishing his presence at the scene. See Kiarie v Republic [1984] KLR 739 and Victor Mwendwa Mulinge v Republic [2014] eKLR.
47. The Appellant claimed that he remained with DW2 throughout the day. DW2 stated that they separated after the morning work and only met again in the evening. He could not account for the Appellant’s whereabouts when the offence was committed.
48. PW2’s direct recognition placed the Appellant at the scene and displaced the alibi beyond reasonable doubt.
49. The evidence proved intentional and unlawful penetration of the complainant without her consent by the Appellant. It established rape contrary to Section 3(1), as read with Section 3(3), of the Sexual Offences Act.
50. Applying Sections 179(2), 354(3)(a)(ii) and 382 of the Criminal Procedure Code, and guided by Robert Mutungi Muumbi, Ali Mohammed Hassani Mpanda and Samuel Kilonzo Musau, substitution of the conviction will not occasion prejudice or a failure of justice.
51. The conviction under Section 7 is accordingly set aside and substituted with a conviction for rape contrary to Section 3(1), as read with Section 3(3), of the Sexual Offences Act.
52. On the question of sentence, Section 3(3) of the Sexual Offences Act prescribes imprisonment for a term of not less than ten years, which may be enhanced to life imprisonment.
53. An appellate court may interfere with sentence where the trial court acted on a wrong principle, overlooked a material factor, considered an irrelevant matter, or imposed a sentence that is manifestly excessive. See Bernard Kimani Gacheru v Republic [2002] eKLR.
54. The Judiciary Sentencing Policy Guidelines require proportionality and consideration of the offence, the offender, aggravating and mitigating circumstances, rehabilitation, deterrence, community protection and denunciation.
55. The Appellant was treated as a first offender and stated in mitigation that he assisted his parents. Against that mitigation, the complainant was elderly, physically incapacitated, cognitively impaired and wholly dependent upon her family for protection.
56. The Appellant was her close relative and took advantage of her inability to resist, communicate or seek assistance. Her vulnerability and the breach of familial trust were substantial aggravating factors. The sentence must also deter and denounce sexual exploitation of vulnerable persons.
57. The ten-year term was the lowest sentence prescribed under Section 3(3). Considering the circumstances of the offence and the offender,
it was lawful and proportionate. I find no basis for reducing it.
58. However, the record does not demonstrate that the trial court credited the period spent in custody. Section 333(2) of the Criminal Procedure Code and the Sentencing Policy Guidelines require that period to be taken into account.
59. In Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, the Court of Appeal held that the period spent in pre-trial custody must be meaningfully credited towards the sentence.
60. The Appellant was arrested on 21st December 2020 and remained in custody. His sentence shall therefore run from that date.
61. The appeal succeeds only to the limited extent of correcting the statutory basis of conviction and the commencement date of sentence.
Orders
a) The conviction for the offence described as “rape of a person with mental disability” contrary to Section 7 of the Sexual Offences Act is set aside.
b) It is substituted with a conviction for rape contrary to Section 3(1), as read with Section 3(3), of the Sexual Offences Act.
c) The sentence of ten years’ imprisonment is upheld.
d) Pursuant to Section 333(2) of the Criminal Procedure Code, the sentence shall be computed from 21st December 2020, being the date of the Appellant’s arrest and commencement of continuous custody.
It is so ordered.