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JudgmentSIMON BEN BAYA VS The Republic13 min read

SIMON BEN BAYA VS The Republic

High Court at Garsen High Court · · M Thande

 

  1. The Appellant was charged with the offence of gang rape contrary to Section 10 of the Sexual Offences Act (SOA). The particulars of the offence are that on 26.3.22 at about 0600 hours at Kibuyu village in Tana River subcounty within Tana River County the Appellant in association with others not before court intentionally and unlawfully caused his penis to penetrate the vagina of Fatuma Diramo Koro (the Complainant) a woman aged 35 years without her consent. The Appellant faced the alternative charge of committing an indecent act with a child contrary to Section 11A of the SOA. The particulars of this offence are that on the same day and in the same place, the Appellant unlawfully and intentionally touched the vagina of the Complainant, with his penis, against her will.
  2. Following a full trial, the Appellant was convicted of the main charge and sentenced to 15 years imprisonment.  

  1. Being aggrieved by the decision of the trial Magistrate, the Appellant has appealed to this Court against the conviction. 
  2. The summarized grounds of appeal as set out in the memorandum of appeal filed on 10.5.23 are:
  3. That the prosecution did not prove its case beyond reasonable doubt, given the discrepancies and irregularities.
  4. That his defence was not considered.  
  5. The Appellant urged the Court to allow the Appeal, and quash the conviction and set aside the sentence. 
  6. As the first appellate Court, the Court is duty bound to re-evaluate and reconsider all the evidence adduced during the hearing afresh and come to its own conclusions about all the elements of the crimes charged. In doing so, the Court must make appropriate allowance for the fact that it neither saw nor heard the witnesses. (See Okeno v Republic [1973] E.A. 32 and Pandya vs. R (1957) EA 336.
  7. The Complainant testified that on 25.3.22 between 5-6am she was chewing khat as she walked home when the Appellant and his accomplice held her mouth and carried her to a house where they raped her in turns. She stated that she knew the Appellant as they used to be neighbours but did not know the other man who she heard the Appellant calling Ben. She stated that she did not permit them to have sex with her.
  8. PW2 Joseph Mbugua Kahoro, a watchman was returning home after night duty on 26.3.22 at around 7am. On entering the corridor of the plot, he saw the Appellant naked and on top of the Complainant. His saw the Appellant’s penis penetrating the Complainant’s vagina while his accomplice Rasta was holding her leg. He asked him what he was doing and the Appellant shouted at him to leave the place immediately. He however did not stop was he was doing. He stated that the incident took place at his own corridor at around 7 am. The chief came and called the police.
  9. PW3 Patrick Mbuvi King’ola testified that on that morning, he left his house to take his phone for charging. On his way back, PW2 called him and when he went to the house he found Rasta holding a lady’s leg and the Appellant had inserted his penis in her vagina. Rasta escaped and left the Appellant.  People came and found the Appellant naked and called the chief who came to the scene.  
  10. PW4 Mohamed Ali Mwenye, the clinical officer who examined the Complainant stated that she was brought in about 5 hours after the incident by police officers with a history of being raped by 3 men. She was heavily drunk, her clothes were dirty but not torn and had no blood stains or injuries to her upper body or private parts and no sperms were noted. Her hymen was long broken and she emitted a foul smelling discharge. He could not confirm whether she was raped. Due to her drunken state, her body parts were relaxed and there was no trauma and he could not tell whether or not there was penetration. He produced the treatment notes, P3 and PRC forms. 
  11. PW5 No. 113989 PC Matunga Victor Otieno stated that after he was informed of the incident by his colleague he begun investigations. He found that on 25.3.22, the Complainant was out drinking local brew in Kibuyu at Ano joint owned by one Kasele until late. After all patrons left and the building was closed, she sat by the roadside chewing miraa. At around 4am the following morning, the Appellant and Rasta came and carried her into a house where they had been drinking. She was too drunk to resist and they raped her in one of the corridors till morning. When PW2 came and found them, he raised the alarm and people rushed there. The Appellant was arrested but Rasta escaped.
  12. After considering the prosecution case, the trial court found that the Appellant had a case to answer and he was put on his defence. 
  13. In his defence, the Appellant stated that on 26.3.22, his neighbour Peter Kassy, a police officer at Hola Police Station asked him why he was stopping his in laws from building on a plot sold by his uncle without the family’s involvement. He was put in a vehicle and taken to the police station with PW2. Later the 2 of them and PW3 were taken to Hola County Referral Hospital for examination and later returned to the police station. PW2 and PW3 were released the following day leaving him in custody and he was charged in court. 
  14. The Appellant further stated that the Complainant initially stated that she was raped by 1 person, then by 2 and then by 3 people who were drinking with her. His case is that there was no evidence that he had been drinking with the Complainant. Further, that the Complainant stated that the incident took place at 4 am and later that it took place at 6.30 am. He added that the Complainant said the rapists used no protection yet the doctor said there was no proof or penetration. Additionally, he wondered where PW3 was at the time of the incident given that the Complainant stated that she was raped inside the house. He further wondered who between the Complainant and PW3 were telling the truth, given that she said the incident occurred inside the house while PW3 stated it happened outside his door. Additionally, that PW5 stated that no people live in the house yet PW3 stated that 3 people live in that house. He urged the trial court to look at the case keenly and give him justice.
  15. The Appellant was charged with the offence of gang rape, contrary to Section 10 of the SOA which provides:

Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less fifteen years but which may be enhanced to imprisonment for life.

  1. In the case of Daniel Kaberu v Republic [2021] eLKR, Gikonyo, J. had this to say about the onus of the prosecution in securing a conviction in respect of the offence of gang rape:

[20]  Under Section 10 of the Act, for the Prosecution to obtain a guilty verdict in the offence of gang rape, it needs to prove the following four elements:

a.  Commission of rape; Penetration as defined by section 2 of the Sexual offences act without consent thereof;

b.  In association with another or others, or any other with common intention, is in the company of another or others who commit the offence of rape

c.  Positive identification of the perpetrator.

  1. The elements of the offence of gang rape that must be proved and which are similar to those of the offence of rape are penetration as defined under section 2 of the SOA and positive identification of the assailant. In addition, it must be proved that the accused person committed the offence in association with another or others, or that the accused person, with common intention, is in the company of another or others who commit the offence of rape. In order to secure a conviction, the prosecution must prove these elements beyond reasonable doubt. This is because in any a criminal trial, the accused person enjoys a presumption of innocence. As such the prosecution bears the burden of presenting a watertight case that meets the threshold of beyond reasonable doubt in order to secure a conviction. 
  2. The Appellant’s case is that the case against him was not proved beyond reasonable doubt.
  3. On identification, the Appellant submitted that the Complainant claimed that she saw 2 people and that both of them raped her at the same time but in turns. Further that the doctor stated that the Complainant was unconscious when brought to hospital. The Appellant thus argued that the Complainant was unable to identify him. Further that they referred to the perpetrator as “rasta” meaning that it could have been anyone with rasta. The Respondent countered this by submitting that the Complainant was able to identify the Appellant as he was well known to her. Similarly, that PW2 stated that he knew the Appellant as they were neighbours.
  4. In her judgment, the trial Magistrate was satisfied that the Appellant was positively identified as the perpetrator by all 3 witnesses who were eye witnesses at the scene and knew the Appellant. Further, that the incident took place in broad daylight.
  5. I have looked at the record. In her testimony, the Complainant stated that the Appellant used to be her neighbour and she knew him well. PW2 an eyewitness, testified that he knew the Appellant who prior to the incident was his neighbour. He even had a conversation with him. PW3 who also witnessed the incident stated that he knew the Appellant, though not by name, as he used to see him from when he was a child. From the testimony of the Complainant and the 2 eye witnesses who all knew the Appellant prior to the incident, there can be no doubt that the Appellant was positively identified as the assailant. As such, this element of the offence was established.
  6. On penetration, the Appellant submitted that the Complainant stated that the Appellant held her mouth and she could not scream while PW2 stated that he saw his penis penetrating the Complainant’s vagina. Further that PW3 also stated that the Appellant inserted his penis in the Complainant’s vagina. He however contended that the testimony of these 3 witnesses was not ascertained by the doctor who examined her 5 hours after the incident and filled the P3 form. The Appellant submitted that the doctor stated in his testimony that the Complainant was heavily drunk, her private parts did not have any injuries and her hymen was long broken. Further that the doctor stated that he could not confirm if the Complainant had been raped. The Appellant thus argued that there is doubt in the prosecution’s case which should be resolved in his favour.
  7. The Appellant further faulted the exhibits produced in the trial court. He submitted that he was not in the photographs produced, meaning that he was not at the scene but was only just mentioned by the Complainant who the doctor said was unconscious when she was brought to the hospital. Further that the treatment notes, PRC and P3 forms from the, the doctor could not verify penetration and that what is contained in the medical history is what the Complainant said after she woke up from her drunken state. He thus argued that the Complainant cannot claim to have been raped when the medical documents fail to confirm penetration.
  8. The Court notes that the medical evidence tendered by PW4 indicated that the Complainant had no blood stains or injuries to her upper body or private parts and no sperms were detected and that her hymen was long broken. Further that due to her drunken state, her body parts were relaxed and there was no trauma and he could not tell whether or not there was penetration.
  9. The question that this Court must ask is whether the absence of sperms and blood stains or injuries to the Complainant’s upper body negate the fact that rape did occur. The Court is, in this regard, guided by the holding in Mwangi vs. Republic [1984] KLR 595 at 603, where the Court of Appeal rendered itself thus:

The presence of spermatozoa alone in a woman’s vagina is not conclusive proof that she has sexual intercourse nor is absence of spermatozoa in her vagina proof of the contrary. What is required to prove that sexual intercourse has taken place is proof of penetration, an essential fact of the offence of rape.

  1. In the present case, the Court notes that PW4 stated that he could not confirm that there was penetration. The reason he gave was that due to her drunken state, the Complainant’s body parts were relaxed and there was no trauma. Besides the medical evidence, the Court must look at all the evidence as a whole. The Complainant herself stated that she was raped by the Appellant and another person. In addition, 2 eye witnesses namely, PW2 and PW3 stated that they saw the Appellant’s penis penetrating the Complainant’s vagina while Rasta held up her leg.
  2. After considering all the evidence as a whole, it is clear that the testimony of PW4 does not negate the fact that there was penetration. From the testimony of PW2 and PW3, I am satisfied that beyond the medical evidence, the overwhelming eyewitness testimony is adequate to find that the element of penetration was established.
  3. The Appellant further alleges inconsistencies and contradictions in the prosecution case. He submitted that the Complainant stated that she was raped on 25.3.22 but that in re-examination, she stated that she was raped on 26.3.22 as did PW2. Further that PW2 stated that he stepped out and saw Hathenge with whom he returned to the scene, yet PW3 whose name is Patrick Mbuvi Kingola said that PW2 called him. The Appellant thus argued that the inconsistencies and contradictions were fatal to the prosecution case. He urged the Court to consider that the prosecution failed to establish a case beyond reasonable doubt.
  4. Our Courts have often been called upon to consider contradictions and inconsistencies in the prosecution case. On this, I find useful guidance in the case of Philip Nzaka Watu v Republic [2016] eKLR, where the Court of Appeal had this to say:

However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.

In DICKSON ELIA NSAMBA SHAPWATA & ANOTHER V. THE REPUBLIC, CR. APP. NO. 92 OF 2007 the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concluded as follows, a view we respectfully adopt:

“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.”

  1. I have noted the inconsistencies in the date of the incident. It is clear from the overall evidence that the incident took place on 26.3.22. As regards the person that PW2 said he called out to, the evidence show that it was PW3 that he had called to witness the incident. Similarly, the Court notes the inconsistency in the testimony of the witnesses regarding the time of the incident. These inconsistencies in my view are minor and inconsequential and do not go to the root of the prosecution case. As such, they have not shaken the prosecution case and cannot be a ground for quashing the conviction. 
  2. The Appellant further submitted that there was inadequate investigation and that there was violation of Article 49(1)(f) of the Constitution. With respect, these are new grounds that have been introduced in submissions.

  1. In the end, after reevaluating the evidence, my finding is that there is overwhelming evidence that the Complainant was raped by the Appellant in conjunction with one Rasta, who escaped. In light of this, the Appellant was properly convicted of the offence of gang rape. Section 10 of the SOA provides that a person convicted of the offence of gang rape is liable to imprisonment for a term of not less fifteen years but which may be enhanced to imprisonment for life. In the premises, the sentence of 15 years imposed upon the Appellant following his conviction, is lawful.
  2. Accordingly, both the conviction and sentence are upheld and the Appeal being devoid of merit, is hereby dismissed.  

DATED and DELIVERED in MALINDI this 13th day of December 2024

 

    SIMON BEN BAYA VS The Republic SIMON BEN BAYA VS The Republic