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Joseph Maina Nderitu, the Appellant, was charged with the offence of Rape contrary to Section 3(1) (a) (b) (3) of the Sexual Offences Act. Particulars of the offence were that on the 25 th day of October, 2022, at Ndivai Village in Nyandarua North Sub-County within Nyandarua County, intentionally and unlawfully caused his penis to penetrate the vagina of Grace Wanjiru Mwangi, a person with mental disability, without her consent.
In the alternative, he faced the charge of Committing an Indecent Act with an adult contrary to Section 11(A) of the Sexual Offences Act. Particulars being that on the 25 th day of October, 2022, at Ndivai Village, in Nyandarua North Sub-County, within Nyandarua County, intentionally touched the vagina of Grace Wanjiru Mwangi, a person with mental disability, with his penis against her will.
Having denied the charges he was taken through full trial, found guilty of the main count, convicted and sentenced to serve fifteen (15) years imprisonment.
Aggrieved, he appeals on grounds that elements of the offence were not established; Penetration was not proved beyond reasonable doubt, and, that the Appellant’s defence was not considered.
Facts of the case were that Grace Wanjiru, the Complainant was at home when the Appellant called her to his house. Then he proceeded to remove his trouser and did ‘bad manners’ to her by inserting his ‘thing’ into her vagina while they were on the bed. On being done, he told her not to tell anyone. Two (2) days later she had pain in the lower abdomen and divulged the fact of having been molested to her mother, PW2 Mary Wangari Mwangi, who reported to the Chief then to the police station. They were referred to hospital where she was examined. Investigations carried out culminated into the Appellant being arrested and charged.
Upon being placed on his defence the Appellant who testified under oath stated that he knows the Complainant and her family as his neighbours. That on 14 th November, 2022, he left home going to a neighbour’s home for a burial ceremony. After burial, as he was eating, police officers arrived and notified him that they were looking for him over a small matter following allegations that he had raped some woman’s daughter, but he denied the allegations. However, he was taken to the police station and later charged.
The appeal was canvassed through written submissions. It is urged by the Appellant that the trial court erred by not taking into consideration evidence of PW4 the Clinical Officer who stated that the victim went to hospital on 2 nd November, 2022 and there was delay in reporting the incident such that it was not shown if indeed the victim was raped.
That the alibi defence put up was not considered.
The State did not file submissions.
This being a first appeal this court is duty bound to re-evaluate afresh evidence adduced before the trial court and come up with its independent conclusions bearing in mind that it did not have the opportunity of seeing or hearing witnesses who testified. This was well stated by the Court of Appeal in the case of Okeno vs Republic (1972) EA thus:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted afresh and exhaustive examination (Pandya –versus- Republic [1957] E A 336) and the appellate court’s own decision on evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions ( Shantilal M Ruwala -versus- Republic [1957] E A 570) . It is not a function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.(see Peter -versus -Sunday Post [1958] E A 424).”
The offence of Rape is defined in Section 3 of the Sexual Offences Act as follows;
(1) A person commits the offence termed 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; or
(c) the consent is obtained by force or by means of threats or intimidation of any kind.
(2) In this section the term “intentionally and unlawfully” has the meaning assigned to it in section 43 of this Act.
(3) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.
To prove the offence of Rape the Prosecution was obligated to establish elements as follows;
Whether penetration occurred.
Whether there was consent.
Whether the act was committed and if it was intentional and unlawful.
Section 2 of the Sexual Offences Act defines penetration as;
“…“penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
According to evidence adduced, the Complainant was alone when the act was committed. She stated that the Appellant called her into his house and did ‘bad manners’ to her. She went on to explain what he actually did, namely inserting his genital organ into her vagina.
PW3 Anne Wangechi stated that on 25 th October, 2022, the Complainant went to her house and told her that the Appellant was a devil as he had done ‘bad manners’ to her and she told her to inform her mother. On cross – examination she stated that the Complainant went to her house soon after although she had not witnessed when she entered the Appellant’s house or when she came out.
Subsequently, the Complainant was examined by PW4 Naftally Kimemia Njuguna, a Clinical Officer on 02/11/2022 who did not establish any physical injuries with an old broken hymen with no evidence of alleged rape although her complaint was of having been raped. It is upon this basis that the Appellant argues that there was no evidence of penetration. On cross – examination the Clinical Officer stated that if a person is raped there is the possibility of injuries being noted depending on their nature but after 5 days or thereafter they may not be seen. That the victim was not mentally stable.
In Mukungu v Republic (2003) AHRLR 175 (KECA 2003) the Court of Appeal stated that;
“Provided 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 if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim was talking the truth.”
In the said case, upon examination, medical evidence did not connect the Appellant to the alleged offence of rape. The court was of the view that neither scientific proof nor research finding can show that a woman fabricated the case against a man in a sexual offence hence the testimony should be treated differently.
On the question of identity of the Appellant, he is very well known to the Complainant. It is not insinuated that the Complainant or her family could had a motive of having the Appellant suffer for what he did not do. Had it been established that they had some desire to do so then the court would have been expected to view the evidence differently.
It has been stated now and again that evidence of a victim in sexual offences is sufficient, it does not require any confirmation. The Complainant was stated to be someone with an intellectual disability. Although no medical evidence was adduced from a professional or psychiatrist and treatment history to that effect, her parent, PW1, and even another witness a neighbour, PW3 testified to that effect. She did testify in court, the court observed her and when an application was made for her to be declared a vulnerable witness, it was done. This clearly showed that she had a condition that limited her ability in some way.
For these reasons the victim had to be believed as the trial court did. In Kassim Ali the Court of Appeal held that;
“…..the absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or circumstantial evidence.”
Although the Appellant was not caught in the act, looking at Complainant’s demeanour, soon after she complained to PW3 calling the Appellant a devil. She could only have done so having been offended.
It is urged by the Appellant that he was not examined so as to have a report on DNA. In Geoffrey Kioji v Republic the court stated thus;
“Where available medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however, hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict it if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person.”
DNA evidence may be good evidence to link the perpetrator to the offence committed but it is not an absolute requirement to prove the case. Therefore, as long as a victim’s testimony is convincing as well as medical evidence then the case will still be proved.
The question to be answered is hence whether the Complainant (victim) consented to the act of penetration that occurred.
Section 42 of the Sexual Offences Act provides that;
For the purposes of this Act, a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice.
Section 44(1) (2) (e) of the Sexual Offences Act provides that;
(1) If in proceedings for an offence under this Act, it is proved—
(a) that any of the circumstances specified in subsection (2) existed; and
(b) that the accused person knew that those circumstances existed, the complainant is to be taken not to have consented to the act unless sufficient evidence is adduced to raise an issue as to whether he or she consented, and the accused is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he or she reasonably believed it.
(2) The circumstances are that—
(e) because of the complainant’s disability, the complainant would not have been able at the time of the commission of the act to communicate to the accused whether the complainant consented.
The Complainant was known to the Appellant. The testimony of the witnesses regarding her mental status was not challenged. On cross – examination the Complainant stated that the Appellant called and offered her Kshs.50,000/- but she declined to accept it. She described the act done to her as ‘bad manners’. Soon thereafter she went to PW3’s house and referred to the Appellant as a ‘devil’. This clearly implied that even if the Complainant has sired a child per evidence adduced, she did not voluntarily participate in the coitus.
It was the Appellant’s argument that no evidence existed like physical injuries to prove that the victim was raped. Lack of physical resistance culminating into the Complainant sustaining injuries may not necessarily mean that she consented to the act. Further, as explained, the Complainant was incapacitated hence had no legal capacity to consent.
As to whether the act was intentional and unlawful, Section 44 (3) (c) of the Sexual Offences Act provides that;
(3) In subsection (2)(a) and (b), the reference to the time immediately before the act is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began.
The act herein was committed against a vulnerable person. The act that was not only unlawful was done intentionally.
It is urged that the defence was not considered. The Appellant put up an alibi defence. He explained that on 14 th November, 2022 he was at a neighbour’s place for burial. According to him, it was impossible for him to have been involved by the victim as he was somewhere else, not at his house as urged by the prosecution. An accused person is presumed innocent until proven otherwise hence the duty was upon the Prosecution to disapprove the allegation.
The trial court did not specifically address the question of alibi but did dismiss the entire defence as mere denials hence the finding that each and every element of the charge had been proved.
For an alibi to be strong so as to withstand the test, there must be disclosure at the earliest opportunity so as to grant the prosecution the opportunity to interrogate it. When PW1 testified it was not suggested to her that no coitus could have occurred between them as the Appellant was not in the vicinity. Similarly, when all Prosecution witnesses testified, it was not suggested that the Appellant would be relying on an alibi. Therefore, the learned trial Magistrate cannot be faulted for disbelieving the alibi defence put forth.
The appeal is against both the conviction and sentence, but the Appellant did not submit on sentence. Section 3(3) of the Sexual Offences Act provides;
A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.
In mitigation the Appellant stated that he was not able to defend himself and called upon the court to consider that he had no records.
I do note that he was a first offender. It is assumed based on Criminal Justice Systems that first offenders may be amenable to rehabilitate therefore the court should have considered adhering to the minimum sentence provided.
For that reason, I confirm the conviction but set aside the sentence of 15 years which I substitute with ten (10) years imprisonment.
It is so ordered.
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Joseph Maina Nderitu, the Appellant, was charged with the offence of Rape contrary to Section 3(1) (a) (b) (3) of the Sexual Offences Act. Particulars of the offence were that on the 25 th day of October, 2022, at Ndivai Village in Nyandarua North Sub-County within Nyandarua County, intentionally and unlawfully caused his penis to penetrate the vagina of Grace Wanjiru Mwangi, a person with mental disability, without her consent.
In the alternative, he faced the charge of Committing an Indecent Act with an adult contrary to Section 11(A) of the Sexual Offences Act. Particulars being that on the 25 th day of October, 2022, at Ndivai Village, in Nyandarua North Sub-County, within Nyandarua County, intentionally touched the vagina of Grace Wanjiru Mwangi, a person with mental disability, with his penis against her will.
Having denied the charges he was taken through full trial, found guilty of the main count, convicted and sentenced to serve fifteen (15) years imprisonment.
Aggrieved, he appeals on grounds that elements of the offence were not established; Penetration was not proved beyond reasonable doubt, and, that the Appellant’s defence was not considered.
Facts of the case were that Grace Wanjiru, the Complainant was at home when the Appellant called her to his house. Then he proceeded to remove his trouser and did ‘bad manners’ to her by inserting his ‘thing’ into her vagina while they were on the bed. On being done, he told her not to tell anyone. Two (2) days later she had pain in the lower abdomen and divulged the fact of having been molested to her mother, PW2 Mary Wangari Mwangi, who reported to the Chief then to the police station. They were referred to hospital where she was examined. Investigations carried out culminated into the Appellant being arrested and charged.
Upon being placed on his defence the Appellant who testified under oath stated that he knows the Complainant and her family as his neighbours. That on 14 th November, 2022, he left home going to a neighbour’s home for a burial ceremony. After burial, as he was eating, police officers arrived and notified him that they were looking for him over a small matter following allegations that he had raped some woman’s daughter, but he denied the allegations. However, he was taken to the police station and later charged.
The appeal was canvassed through written submissions. It is urged by the Appellant that the trial court erred by not taking into consideration evidence of PW4 the Clinical Officer who stated that the victim went to hospital on 2 nd November, 2022 and there was delay in reporting the incident such that it was not shown if indeed the victim was raped.
That the alibi defence put up was not considered.
The State did not file submissions.
This being a first appeal this court is duty bound to re-evaluate afresh evidence adduced before the trial court and come up with its independent conclusions bearing in mind that it did not have the opportunity of seeing or hearing witnesses who testified. This was well stated by the Court of Appeal in the case of Okeno vs Republic (1972) EA thus:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted afresh and exhaustive examination (Pandya –versus- Republic [1957] E A 336) and the appellate court’s own decision on evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions ( Shantilal M Ruwala -versus- Republic [1957] E A 570) . It is not a function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.(see Peter -versus -Sunday Post [1958] E A 424).”
The offence of Rape is defined in Section 3 of the Sexual Offences Act as follows;
(1) A person commits the offence termed 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; or
(c) the consent is obtained by force or by means of threats or intimidation of any kind.
(2) In this section the term “intentionally and unlawfully” has the meaning assigned to it in section 43 of this Act.
(3) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.
To prove the offence of Rape the Prosecution was obligated to establish elements as follows;
Whether penetration occurred.
Whether there was consent.
Whether the act was committed and if it was intentional and unlawful.
Section 2 of the Sexual Offences Act defines penetration as;
“…“penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
According to evidence adduced, the Complainant was alone when the act was committed. She stated that the Appellant called her into his house and did ‘bad manners’ to her. She went on to explain what he actually did, namely inserting his genital organ into her vagina.
PW3 Anne Wangechi stated that on 25 th October, 2022, the Complainant went to her house and told her that the Appellant was a devil as he had done ‘bad manners’ to her and she told her to inform her mother. On cross – examination she stated that the Complainant went to her house soon after although she had not witnessed when she entered the Appellant’s house or when she came out.
Subsequently, the Complainant was examined by PW4 Naftally Kimemia Njuguna, a Clinical Officer on 02/11/2022 who did not establish any physical injuries with an old broken hymen with no evidence of alleged rape although her complaint was of having been raped. It is upon this basis that the Appellant argues that there was no evidence of penetration. On cross – examination the Clinical Officer stated that if a person is raped there is the possibility of injuries being noted depending on their nature but after 5 days or thereafter they may not be seen. That the victim was not mentally stable.
In Mukungu v Republic (2003) AHRLR 175 (KECA 2003) the Court of Appeal stated that;
“Provided 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 if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim was talking the truth.”
In the said case, upon examination, medical evidence did not connect the Appellant to the alleged offence of rape. The court was of the view that neither scientific proof nor research finding can show that a woman fabricated the case against a man in a sexual offence hence the testimony should be treated differently.
On the question of identity of the Appellant, he is very well known to the Complainant. It is not insinuated that the Complainant or her family could had a motive of having the Appellant suffer for what he did not do. Had it been established that they had some desire to do so then the court would have been expected to view the evidence differently.
It has been stated now and again that evidence of a victim in sexual offences is sufficient, it does not require any confirmation. The Complainant was stated to be someone with an intellectual disability. Although no medical evidence was adduced from a professional or psychiatrist and treatment history to that effect, her parent, PW1, and even another witness a neighbour, PW3 testified to that effect. She did testify in court, the court observed her and when an application was made for her to be declared a vulnerable witness, it was done. This clearly showed that she had a condition that limited her ability in some way.
For these reasons the victim had to be believed as the trial court did. In Kassim Ali the Court of Appeal held that;
“…..the absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or circumstantial evidence.”
Although the Appellant was not caught in the act, looking at Complainant’s demeanour, soon after she complained to PW3 calling the Appellant a devil. She could only have done so having been offended.
It is urged by the Appellant that he was not examined so as to have a report on DNA. In Geoffrey Kioji v Republic the court stated thus;
“Where available medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however, hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict it if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person.”
DNA evidence may be good evidence to link the perpetrator to the offence committed but it is not an absolute requirement to prove the case. Therefore, as long as a victim’s testimony is convincing as well as medical evidence then the case will still be proved.
The question to be answered is hence whether the Complainant (victim) consented to the act of penetration that occurred.
Section 42 of the Sexual Offences Act provides that;
For the purposes of this Act, a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice.
Section 44(1) (2) (e) of the Sexual Offences Act provides that;
(1) If in proceedings for an offence under this Act, it is proved—
(a) that any of the circumstances specified in subsection (2) existed; and
(b) that the accused person knew that those circumstances existed, the complainant is to be taken not to have consented to the act unless sufficient evidence is adduced to raise an issue as to whether he or she consented, and the accused is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he or she reasonably believed it.
(2) The circumstances are that—
(e) because of the complainant’s disability, the complainant would not have been able at the time of the commission of the act to communicate to the accused whether the complainant consented.
The Complainant was known to the Appellant. The testimony of the witnesses regarding her mental status was not challenged. On cross – examination the Complainant stated that the Appellant called and offered her Kshs.50,000/- but she declined to accept it. She described the act done to her as ‘bad manners’. Soon thereafter she went to PW3’s house and referred to the Appellant as a ‘devil’. This clearly implied that even if the Complainant has sired a child per evidence adduced, she did not voluntarily participate in the coitus.
It was the Appellant’s argument that no evidence existed like physical injuries to prove that the victim was raped. Lack of physical resistance culminating into the Complainant sustaining injuries may not necessarily mean that she consented to the act. Further, as explained, the Complainant was incapacitated hence had no legal capacity to consent.
As to whether the act was intentional and unlawful, Section 44 (3) (c) of the Sexual Offences Act provides that;
(3) In subsection (2)(a) and (b), the reference to the time immediately before the act is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began.
The act herein was committed against a vulnerable person. The act that was not only unlawful was done intentionally.
It is urged that the defence was not considered. The Appellant put up an alibi defence. He explained that on 14 th November, 2022 he was at a neighbour’s place for burial. According to him, it was impossible for him to have been involved by the victim as he was somewhere else, not at his house as urged by the prosecution. An accused person is presumed innocent until proven otherwise hence the duty was upon the Prosecution to disapprove the allegation.
The trial court did not specifically address the question of alibi but did dismiss the entire defence as mere denials hence the finding that each and every element of the charge had been proved.
For an alibi to be strong so as to withstand the test, there must be disclosure at the earliest opportunity so as to grant the prosecution the opportunity to interrogate it. When PW1 testified it was not suggested to her that no coitus could have occurred between them as the Appellant was not in the vicinity. Similarly, when all Prosecution witnesses testified, it was not suggested that the Appellant would be relying on an alibi. Therefore, the learned trial Magistrate cannot be faulted for disbelieving the alibi defence put forth.
The appeal is against both the conviction and sentence, but the Appellant did not submit on sentence. Section 3(3) of the Sexual Offences Act provides;
A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.
In mitigation the Appellant stated that he was not able to defend himself and called upon the court to consider that he had no records.
I do note that he was a first offender. It is assumed based on Criminal Justice Systems that first offenders may be amenable to rehabilitate therefore the court should have considered adhering to the minimum sentence provided.
For that reason, I confirm the conviction but set aside the sentence of 15 years which I substitute with ten (10) years imprisonment.
It is so ordered.
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