MARTIN MURIITHI VS The Republic MARTIN MURIITHI VS The Republic

(Appeal arising from the decision of Hon. Ndengeri J. (S.R.M) in the Magistrate’s Court at Embu MCSO Case No.45 of 2020 delivered on 10^th December, 2021)

Before the court, is the petition of appeal dated the 30^th day of January, 2023 in which the appellant has challenged the decision of the trial court in Sexual Offence number 45 of 2020. In the said case, the appellant was charged 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 were that, on the 2^nd day of September 2020, at Matiru village Manyatta sub-location in Embu County, intentionally and unlawfully caused his penis to penetrate the anus of Samuel Njagi without his consent.
At the trial the appellant pleaded “not guilty” to the charge. The case proceeded to full hearing and he was subsequently convicted and sentenced to serve ten (10) years imprisonment.
The appellant being dissatisfied with the decision of the trial court, filed the petition of appeal dated the 30^th January, 2023 seeking that the appeal be allowed and that the conviction and the sentence be set aside. The appeal is premised on the following grounds;
The learned magistrate erred in law and facts by convicting the appellant relying on the evidence of identification when the circumstances favouring positive identification were not in existent.
The learned magistrate erred in law and fact by relying on insufficient evidence to convict the appellant.
The learned magistrate erred in law and facts by convicting the appellant on hearsay evidence.
The learned magistrate erred in law and fact by disregarding the appellant’s defence without giving cogent reasons.

4. The summary of the evidence at the trial was as follows; PW1 a minor aged 13 years stated that on the 2.9.2020, he was at their neighbor’s place when the neighbor asked him to go and check on the complainant who was his cousin. He went and found the appellant in the kitchen inside the house where the complainant was. He peeped from outside and saw the appellant dressing the complainant. The appellant ran into the farm and a neighbor caught up with him. It was his further evidence that the complainant was crying when he was asked to go and check on him and when he peeped through the window the complainant did not have any clothes on him. On cross examination he stated that he saw the appellant inside the kitchen.

PW2, Beth Mutitu Njagi the grandmother to the complainant stated that on the material day, he left home around 2PM and left PW1 to watch over the complainant who was physically challenged, - mute and blind. He was called by the sub-area and was asked to go back home quickly and when she got home she checked on the complainant who was in the house and was sleeping on the bed facing down and was naked. She shone a torch on his buttocks (Anus) and he had some watery like substance. The chief arrested the appellant and took him to Manyatta police station. The complainant was treated at Embu level (5) where he was admitted from 2^nd – 8^th September, 2020.
PW3, Elias Njue Murangiri stated that on the 2^nd September 2020, he received a call from one Newton Nthiga, the sub area, who asked him to head to PW 2’s house. He found the appellant having been arrested by members of the public. He accompanied the Assistant Chief to the police station and they later took the complainant to Hospital. On cross examination he stated that there is no grudge between him and the appellant.
PW 4, Dr Phyllis Muhonja examined the complainant and filled the P3 form for him. She stated that he is physically and mentally disabled. On examination on the anal region, the complainant had 1 x 1cm bruise actively bleeding on the left side. 1cm. six o’clock – 4cm injury. The sphincter strength was reduced by 70% and fecal matter was found on the outer anus. No seminal fluid was found on the victim. He was treated for spastic deformity through occupational therapy.
PW 5, Pc Martin Wanyama investigated the case after it was handed to him by his colleague. He visited the scene and verified that the victim was sexually assaulted, he interviewed the witnesses and arrested the appellant.
PW 6, Pc Stanley Kipruno took over investigations from PW 5. He produced the government analyst report and the exhibit memo form as exhibits.
At the close of the prosecution’s case, the appellant was placed on his defence. He gave sworn statement. He stated that they have wrangles in the family and all the witnesses who testified are family members. That the government analyst report did not link him to the offence and that the evidence by the witnesses was inconsistent. It was also his defence that the issue was linked to campaigns as his cousin who was vying as a member of parliament had refused to give money to the complainant and had instead given him a wheel chair and the grandmother who was taking care of him was not happy with that.
The trial court analyzed the evidence and found the appellant guilty and sentenced him to serve ten (10) years imprisonment.
In this appeal, the court directed the parties to file their submissions which they did.
In his submissions, the appellant stated that the hearing was not conducted in a fair manner and challenged the evidence of PW 1 as being contradictory and untrue. He urged the court to allow the appeal.
On its part, the respondent submitted on the ingredients of the offence of rape as set out in section 3(1) of the sexual offences Act number 3 of 2006 and relied on the case of Peter Musau Mwanzia Vs Republic (2008) eKLR. On the issue of consent, the respondent cited the case of Nicholas Kiprotich Rono Vs Republic (2022) eKLR and relied on sections 42 and 43 of the Sexual Offences Act to urge their submission that the complainant was not capable of giving a consent due to his mental and physical disability. On contradictions, the respondent relied on the case of MTG Vs Republic (2022) eKLR and urged the court to dismiss the appeal.
The issues for determination are as follows;
1. Whether the prosecution proved it’s case beyond reasonable doubt.
2. Whether the appellant’s defence was considered by the trial court.

16. On the first issue, the appellant herein was charged with the offence of rape. The offence of rape and the ingredients of the same are provided for in section 3(1) of the sexual offences Act number 3 of 2006 as follows, 3(1). A person commits the offence termed as 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.
The consent is obtained by force or by means of threat or intimidation of any kind.

17. On the identification of the appellant, the complainant was epileptic, mute and blind and used to full rely on his grandmother for everything as he is also physically challenged. On the 2.9.2020, the grandmother (PW2) left the home at 2.00p.m to go and sell Sukuma. She left PW1 in charge of the complainant but she was later called by the sub-area who asked her to go home quickly and on getting there and checking on the complainant he had some wetness and was watery on the anus. He found him naked yet he had dressed him that day before she left the house. He took the complainant to Embu level (5) Hospital where he was admitted from 2^nd – 8^th September 2020. PW1, stated that on the 2.9.2020 he was at their neighbor’s place where he had gone to play when the neighbor asked him to go and check on the complainant as he was crying. When he went, he found the appellant inside the house dressing the complainant. The appellant ran to the farm but he was later arrested. It was his evidence that he knew the appellant well, as he was a neighbor and a good friend to their uncle and the incident happened during the day.

18. PW3, examined the complainant and filled a P3 form for him. She confirmed that there was anal penetration on the complainant and that the sphincter strength was reduced by 70% but no seminal fluid was found on the victim. He was treated for spastic deformity through occupational therapy to restore bowel movement.

19. On whether there was consent, sections 42 and 43 of the sexual offences Act provides as follow;

42. consent

“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.”

43. Intentional and unlawful acts.

(1) An act is intentional and unlawful if it is committed-

a) in any coercive circumstances

b) under false pretenses or by fraudulent means or

c) in respect of a person who is incapable of appreciating the nature of an act which causes the offence.

(2) The coercive circumstances referred to in sub-section (1) (a) include any circumstances where there is –

- 1. use of force against the complainant or another person or against the property of the complainant or that of any other person.
  2. Threat of harm against the complainant or another person or against the property of the complainant or that of any other person; or
  3. Abuse of power or authority to the extent that the person in respect of whom an act is committed is inhibited from indicating his or her unwillingness to participate in such an act.

20. In the case of Nicholas Kiprotich Rono Vs Republic (2022) eKLR quoted with approval in the case of Republic Vs Oyier (1985) KLR 353 the court of appeal held;

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 or 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 resist.
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”

In the case herein, the complainant was physically and mentally challenged and was not capable of giving consent.

21. On contradictions, in the case of MTG Vs Republic (2022) eKLR justice Mativo (as he then was), which decision is persuasive held;

“Contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. It must deal with the real substance of the case. Minor or trivial contradictions do not affect the credibility of a witness and cannot viciate a trial. It is not every trifling inconsistency in the evidence of the prosecution witness that is fatal to it’s case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in questions before the court and therefore necessarily create some doubt in the mind of the trial court that accused is entitled to benefit there from….”.

22. This Court has read through the evidence that was adduced at the trial, and in my view, there are no material contradictions that can affect the credibility of the witnesses. The contradictions were minor and not material in any way.

23. The appellant also decried that his defence was not considered by the trial Court. This Court has read through the judgment of the trial court and in paragraph 15 of the same, the learned magistrate noted that the appellant’s defence that touched on political differences; economic exploitation was raised quite late in the day after PW2 had already testified. The trial court treated his defence as an afterthought. This court cannot agree more.

24. In the end, I find that the appeal has not merits and it is hereby dismissed.

25. It is so ordered.

Delivered, dated and signed at Embu this 28^th day of August, 2024.