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JudgmentJOHN MWANGI WAHOME VS The Republic20 min read

JOHN MWANGI WAHOME VS The Republic

High Court at Nyeri High Court · · Magare Dennis Kizito Ngwono

  1. This Appeal arises from the Judgement of the Trial Court, Hon. V. Kosgei, Principal Magistrate in Karatina SPMSO No. 3 of 2006. The Appellant was charged with incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006.
  2. The particulars of the offence were that on 3rd March, 2022 and 22nd April 2022, in Gikumbo village Mathira East Sub-county within Nyeri County intentionally and unlawfully caused your penis to penetrate the vagina of Elena Wanjiku Wahome, a person who he knew was his sister.
  3. The Accused person was arraigned and he denied the charges. A plea of not guilty was consequently recorded. The Trial Court considered the case and rendered the Judgement. The Court found the Appellant guilty and convicted him of the offence. The Appellant, aggrieved, lodged this Appeal.

Submissions

  1. The Appellant filed submissions and further submissions. He submitted that the trial court erred in convicting him without prove of the elements of the offence. It was his case that the prosecution did not prove its case beyond reasonable doubt. He relied on the case of Batler v. Batler (1950) All ER.
  2. It was also submitted that there were contradictions in the prosecution evidence. This therefore called for the Appellant to be given a benefit of doubt. Reliance was placed on the case of Cyrus Maina Gakuru v Republic HCCA No. 58 of 2014.
  3. The Respondent submitted that the offence was proved to the required standard and reliance was placed on the case of GMM v Republic (2019) eKLR to submit that the ingredients of knowledge and penetration were well proved beyond reasonable doubt.
  4. It was also submitted that all the essential witnesses were called and who proved the prosecution case and the trial court was correct in its conviction.
  5. They supported the conviction and sentence and urged me to dismiss the Appeal as unmerited. It was their case that the case was proved beyond reasonable doubt and the sentence was lawful.

Analysis

  1. I have perused the record of proceedings and evidence in the Trial Court as well as the filed submissions. The issue is whether the Trial Court erred in convicting and sentencing the Appellant as she did.
  2. The duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 as follows:-

“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.

  1. In the case of Mbogo and Another vs. Shah [1968] EA 93 where the Court stated:

“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

  1. The first aspect is to determine what constitutes reasonable doubt. It does not include fanciful doubt or remote possibilities. It also does not include contention that they acted under the powers of the Devil. Parties may attribute actions to him, but ultimately, it is the human actor that is to be held responsible. In any case such evidence is not useful without cogent evidence of involvement of the devil. It is not enough that the act is so horrendous that it shocks the human conscience that we must ultimately attribute to the supernatural. The Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR stated as doth:

“What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-

‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’”

  1. To succeed, the Appellant must show to the court that there was reasonable doubt which was created and the trial court did not exercise the doubt in his favour.
  2. The Appellant filed 7 grounds of Appeal. The 7th ground is not a real ground of appeal.  The other grounds are the normal grounds on conviction and sentence. I may not set them herein verbatim but shall deal with them in three limbs; -
    1. Framed
    2. Identification
    3. Sentence

Evidence

  1. The complainant Hellena Wanjiku Wahome testified on 20/7/2022.  It is not indicated whether she was sworn.  She was however indicated to be Christian. She must have been sworn, otherwise the Appellant could have raised the issue.
  2. She stated that she was at home when the Appellant raped her.  She was in the house in the same compound with her brother, the Appellant and went to sleep having locked herself in.  The Appellant broke into the house by removing three pieces of timber and assaulted the complainant, removed underwear using his legs.  He had tabia mbaya with her and went away.  He gave the complainant 50 shillings.
  3. It was indicated in cross examination that the Appellant, who was her brother came into the house, beat the complainant and asked her to remove panties.  The Appellant inserted his penis into her vagina.  She told the mother the following day.  The mother did not want to hear. 
  4. After a month the complainant told her friend Tabitha who took steps and took her to Karatina District Hospital.  According to her, this was the third time in that short span that the Appellant was raping her.  The complainant’s report to the mother fell on deaf ears.
  5. On cross-examination, after tearing up, she stated that the Appellant broke into the house where she had locked herself.  The prosecution indicated that the complainant was mentally unstable while the appellant maintained that she was sane. There is a presumption of sanity and as such a party alleging insanity had a duty to prove the same. In any case it does not change her status as a sister.
  6. The second witness stated that she knows both the complainant and the appellant.  She stated that the complainant went to the witness at Karatina.  She was examined.  A P3 and PRC form was filled.  She used to attend Karatina Hospital for psychotic care.  She stated that the victim was not of sound mind. 
  7. That according to her victim was not of sound mind.  She denied ever quarreling with the appellant.  She denied that she taught the victim to go sleep with the appellant for money.  The rest of the questions were irrelevant to the offence being charged.
  8. PW3 testified that the victim and accused are their neighbours.  He was informed that the appellant used to rape the victim.  He accompanied the victim and Tabitha to report.  There was no evidence of mental disability.  The witness is an Assistant Chief in Gikombo.  He stated that he had no case against the appellant. 
  9. PW4 PC CPL Julius Macharia testified on receipt of report from PW3 who accompanied the victim Ellena.  She is said to have psychotic disorder and attends clinic. The report had been recorded about the rape starting 3/3/2022.  The doctor examined her and confirmed that there was evidence of rape.  The accused is a blood brother of the victim.  The witness states that the appellant removed 3 timbers from the shanty house.  He also has a house in the compound.
  10. The next witness was also indicated as DW4 – Dr. Stephen Nderitu.  He produced P3 form and PRC and lab results filled by Lion Andayi who was on leave.  It was produced pursuant to Section 33 of the Evidence Act.  It shows the victim was born in 1974.  She was examined on 22/4/2022 at 5.30 pm.  The incident occurred on 21/4/2022.  The victim had mental disability, had a bruised neck, had inflamed mild bruises at the entry to the vagina.  Her hymen was absent, though not freshly broken.  Other tests were carried out, P3 and PRC forms were filled.
  11. The court found the Appellant with a case to answer.  He stated, upon Section 211 being complied with, that he was giving sworn evidence but no witness.  Proceedings were to be typed and supplied to the appellant.  He testified on 15/2/2023.  He stated that he was told that the Appellant and the sister’s name was to be taken.  He stated that he called his mother who he heard that he was sleeping with the sister.
  12.   He stated that PW2 and PW3 forced PW1 to record a statement.  He stated they gave contradictory evidence.  He stated that his mother and brother are his enemies.  In mitigation he raised the same issues. He gave neither alibi or other known defence.

Analysis

  1. The court needs to establish only two issues;
  2. The appellant and complainant are brother and sister.
  3. The appellant penetrated the complainant using his penis.
  4. All witnesses agree that the appellant and the complainant are brother and sister.  The PRC report shows a scaling of the neck, evidence of strangulation.  The vagina was inflamed.  There was a palpable mass at 20 weeks.  The vagina was normal in the external genitalia, inflamed and swollen throitus as per the P3 form filled on 3/5/2022.  The evidence of penetration is proved.  The last incident is said to have occurred on 22/4/2022.  The examination was on 3/5/2022.  The question is whether the appellant was the perpetrator. 
  5. The complainant was fairly coherent in spite of psychotic disorder.  She remained steady during the trial and was able to experience pain.  The witness was cogent as to what happened to her.  She told her mother, who appears to have taken the oath of silence omerta.  The complainant had to seek help from PW2 and PW3.  The evidence of PW1, PW2 and PW3 was unshaken. This may have been the raison d’etre for the defendant to change the defence to blaming the brother and mother. The expert evidence was cogent. I do not pretend for a minute that expert evidence is un-impregnable.  It has to be treated with other evidence.  In dealing with expert evidence this court in the case of Stephen Kinini Wang'ondu vs. The Ark Limited [2016] eKLR from which the Judge drew out four tests to be applied by a court when considering admission and acting on expert evidence as more particularly set out in the ruling and which we also find prudent not to rehash and expressed himself thereon, inter alia, as follows: -

“In my view its correct to state that a court may find that an expert’s opinion is based on illogical or even irrational reasoning and reject it. A judge may give little weight to an expert’s testimony where he finds the expert’s reasoning speculative or manifestly illogical. Where a court finds that the evidence of an expert witness is so internally contradictory as to be unreliable, the court may reject that evidence and make its decision on the remainder of the evidence. The expert’s process of reasoning must therefore be clearly identified so as to enable a court to choose which of competing hypotheses is the more probable. It is a trite principle of evidence that the opinion of an expert, whatever the field of expertise, is worthless unless founded upon a sub-stratum of facts which are proved, exclusive of the evidence of the expert, to the satisfaction of the court according to the appropriate standard of proof. The importance of proving the facts underlying an opinion is that the absence of such evidence deprives the court “of an important opportunity of testing the validity of process by which the opinion was formed, and substantially reduces the value and cogency of the opinion evidence.” An expert report is therefore only as good as the assumptions on which it is based. An expert gives an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based.”

  1. The court in the above matter continued as doth: -

“In Shah and Another vs. Shah and Others [2003] 1 EA 290 wherein Ombija, J. expressed himself on this issue, inter alia, as follows:

“One of the special circumstances when witnesses may be called to give evidence of opinion is where the situation involves evidence of expert witness and this is an exception to the general rule that oral evidence must be direct…The expert opinion is however limited to foreign law, science or art; including all subjects on which a course of study or experience is necessary to the formation of an opinion and handwriting is one such field…However as a rule of practice, a witness should always be qualified in court before giving his evidence and this is done by asking questions to determine and failure to properly qualify an expert may result in exclusion of his testimony…The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so…If there is a conflict of expert opinion, with experts appearing for both parties, resolution of conflicting evidence or the acceptance of the evidence of one expert in preference to the opinion of the other, is the responsibility of the court…Properly grounded expert evidence of scientific conclusion will be extremely persuasive in assisting the court to reach its own opinion.”

  1. It is noted that the medical evidence is consistent with assault before rape.  The appellant did not either deny the issue of rape except to lament that it had tainted his name due to the same becoming public knowledge.  He however blames other people than himself. He had no grudge with his parents and brother. The Appellant confirmed that he had no grudge with the witnesses, including the complainant. He gave up on feeble efforts to insinuate bad blood with the Assistant chief.
  2. I am not convinced that the defence offered was tenable.  After reviewing the court’s decision, it is clear that the court which had an advantage of seeing witnesses was able to make an informed decision.  That the appellant confirmed that they had no grudge with the witnesses.
  3. Further, he was aware the complainant was of sound mind though she goes to Karatina.  From medical evidence, the treatment started in June 2022 after the incident.  Her evidence was steady and not shaken at all.
  4. The Appellant was clearly seen by her sister.  This he had done 3 times.  The victim was properly recognized.  Evidence of recognition is more reliable than identification. In Zachayo Napai Lorwasia v Republic [2019] eKLR, Justice Mwongo stated as doth: -

“In Charles Amboko Anemba & Another v Republic [2015] eKLR the issue of identification was discussed at length with the court placing reliance on the following cases to reach its determination: R v Turnbull & Others (1976) 3 ALL ER 549, where the Court considered the factors that ought to be considered when the only evidence turns on identification by a single witness, and the court held:

“... The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made.  How long did the witness have with the Accused under observation?  At what distance? In what light? Was the observation impeded in any way....? Had the witness ever seen the accused before?  How often?  If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police?  Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?.... Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

11.  In the case of Wamunga v Republic (1989) KLR 426 the Court of Appeal stated:

“It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.

  1. The Appellant was a younger brother to the Complainant. The Appellant entered the house, woke her sister up and raped her. The sister recognized him. He did this three times in different occasions. Surely there was no mistake. Only fanciful doubts could arise. The evidence is cogent and was not shaken.
  2. I find and hold that there was no error on part of the court.  Ground 1 of appeal thus falls given that the incest was proved beyond reasonable doubt.  The second ground is equally untenable.  The oral evidence was in consonance with all evidence on record.  As regards Section 143 of the Evidence Act, it reassures that there is no number of witnesses required. 

“It provides that: “No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”

  1. Odunga, J as he then was in Bernard Philip Mutiso v Tabitha Mutiso [2022] eKLR stated as follows:

53. In this case the only people who could have explained the circumstances under which the accident occurred were Musyoka Mutiso who was ahead of the deceased, PW2 and the Appellant. PW2 gave evidence that tended to show that the accident was caused by the negligence of the Appellant while Musyoka Mutiso was not called to testify. In those circumstances one would have expected the Appellant to testify in order to controvert the evidence of PW2 but he chose not to do so. Accordingly, I find that not only was the evidence of PW2 uncontroverted but the conduct of the Appellant invited the inference that his evidence, had he testified, would have been adverse to his case as pleaded.

  1. There was no witness who was not called. The mother and brother were not in the locus in quo. The Appellant could not fault for not calling nonexistent witnesses. Therefore there is no adverse inference made.
  2.   The ground is thus otiose.  The investigation were not shoddy.  All the requisite witnesses were called.  More critically, Section 124 of the Evidence Act was complied with.  It states as doth:

“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”

  1. There was no person other than the appellant who committed the offence.  This was direct evidence.  In any case circumstantial evidence, it must be inconsistent with the accused’s innocence. In the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, Court had this to say on circumstantial evidence:

“However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”

  1. The evidence of all the witnesses was consistent. There were no discrepancies or gaps that were gaping.  Different accounts are expected when parties played different parts. Abel Maina Mburu v Republic [2021] eKLR, Justice, E C MWITA stated as doth:-

41. In Richard Munene v Republic [2018] eKLR, the Court of Appeal stated with regard to contradiction or inconsistency in the evidence of the prosecution witness:

Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused.

It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.

42. In Dickson Elia Nsamba Shapwata & Another v The Republic, (Criminal. Appeal. No. 92 of 2007), the Court of Appeal of Tanzania addressed the same issue of discrepancies and stated;

In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.

43. Similarly, in Erick Onyango Ondeng’ v Republic [2014] eKLR, the Court of Appeal cited Twehangane Alfred v Uganda, (Crim. App. No 139 of 2001, [2003] UGCA, 6,  in which the Court of Appeal of Uganda stated:

With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.

  1. No contradictions were shown to exist. The question of contradictions is thus not proved and is accordingly dismissed.
  2. The question of not being supplied with a charge sheet is an afterthought.  The appellant sought only proceedings before defence hearing.  He was supplied.  There was no pending request.  The issue of a charge is a red herring.  The appellant was properly identified.
  3. In the circumstances, I find that the case was properly proved as per the required standard of proof.  I therefore dismiss the appeal on conviction.
  4. On sentence, Section 20 provides as follows;

“20. (1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:

Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.

  1. Whereas the court has discretion on matters of sentence, minimum sentences are not a decoration. There must be a raison d’etre why they were enacted. The minimum sentence provided is 10 years.  The court gave a minimum sentence.  The court noted that the appellant did not want to mitigate.  In other words, he was not remorseful.
  2. Without remorse, the Appellant took away the discretion of the court.  The test is not whether the court could have given a different sentence.  A sentence is discretionary as per the sentencing policy guidelines 2023.  In meting out 10 years the court stated it is because it is the minimum. 
  3. I note on the other hand that this was a case of breaking into the sister’s residence, strangling her and raping her middle aged sister.  It is barbaric. This was not once, not twice, but thrice.  Unfortunately, I did not warn the appellant of the possibility of enhanced sentence in line with the Sentencing Guidelines. 
  4. The Appellant has to live with a slap on the wrist that the court gave her. It was too lenient a sentence.  in other circumstances, a period exceeding the sentence given could have sufficed. The sentence was however lawful and as such could be meted.
  5. In the circumstances I dismiss the appeal on sentence.

Order

  1. In the circumstances, I make the following orders: -
    1. The appeal on both sentence and conviction is dismissed.  For avoidance of doubt, the appellant’s sentence of 10 years is affirmed.  The sentence shall run from the date of arrest as per Section 333(2) of the Criminal Procedure Code.
    2. The appellant’s name should be entered in the register of convicted sexual offenders.
    3. The file is closed.

DELIVERED, DATED and SIGNED at Nairobi, Virtually on this 8th    day of    April 2024.  Judgment delivered through Microsoft Teams Online Platform.

In the presence of: -

The Appellant –pro se

Mr. Mwakio for the Respondent

Court Assistant – Norah/Michael/ Andrew

    JOHN MWANGI WAHOME VS The Republic JOHN MWANGI WAHOME VS The Republic