Achuki v Republic (Criminal Appeal E001 of 2021) [2022] KEHC 10083 (KLR) (Crim) (12 July 2022) (Judgment)
Neutral citation:
[2022] KEHC 10083 (KLR)
Republic of Kenya
Criminal Appeal E001 of 2021
LN Mutende, J
July 12, 2022
Between
Johnstone Nyambega Achuki
Appellant
and
Republic
Respondent
(Being an Appeal arising from the original conviction in Criminal Case No. 1541 of 2014 at Chief Magistrates Court Makadara by Hon. DR. A. W. Macharia – SRM on 3rd December, 2020)
Judgment
1.Johnstone Nyambega Achuki, the appellant, was charged as follows:(i)Rape contrary to Section 3(1) (a) as read with Section 3(3) of the Sexual Offences Act No. 3 of 2006. Particulars being that on the 12th day of March 2014 in Embakasi Division within Nairobi County, intentionally and unlawfully caused his penis to penetrate the vagina of SKM without her consent. In the alternative, he was charged with committing an Indecent Act with an adult contrary to Section 11A of the Sexual Offences Act No. 3 of 2006. Particulars being that on the 12th day of March 2014 in Embakasi Division within Nairobi County, intentionally touched the vagina and buttocks of SKM with his penis against her will.(ii)Grievous harm contrary to Section 234 of the Penal Code. Particulars being that on 12th day of March 2014 in Embakasi Division within Nairobi County, unlawfully did grievous harm to SKM .
2.He was taken through full trial, found guilty of both counts of rape and causing grievous harm where he was sentenced thus:Count I – to serve 30 years imprisonment.Count II – to serve 30 years imprisonment.
3.Aggrieved, as per the amended grounds of appeal, he appeals on grounds as follows:1.That, the trial Magistrate erred in both law and fact by not finding that the prosecution did not build a credible prima facie case against the appellant as required by the dicta of Section 150 of the CPC as read with Section 163 of the Evidence Act. Where essentially, the prosecution failed to prove their case beyond reasonable doubt as required by law to warrant a conviction.2.That, the trial Magistrate erred in law and facts by not finding that the elements and the ingredients of the alleged offence against the appellant were not proved at all, where the judgment, conviction and sentence of the appellant was based on misinterpreted and influenced circumstantial evidence.3.That, the trial Magistrate erred in both law and fact by disregarding the appellant’s defence without cogent reason given for such rejection of his evidence, despite it being essential for a fair trial, considering it was not displaced as required by law in Section 212 of the CPC.
4.Facts of the case were that the complainant SKM and the appellant were lovers. On the March 12, 2014, the appellant communicated with the complainant and asked her to visit him. She sought permission and left her place of work at about 2.00 pm and went to the appellant’s place of residence. He opened the door for her and went to the bathroom. When he came out of the bathroom he remarked that the complainant disgusted him. All over a sudden he pushed her onto the bed and started beating her. He pulled, pushed, slapped and hit her with a fist. When she attempted to scream he covered her mouth, removed her clothes and violated her sexually. She lost consciousness and when she regained it, she realised she was bleeding from her genetalia and mouth, she was in pain and felt discomfort in her genital organ. She cried as she dressed up and the appellant told her to go and cry from outside and locked the door behind her. While outside she encountered ladies selling vegetables. One of them assisted her by taking her to the Aga Khan Hospital, where she was subjected to medical examination and treatment. Her relatives and sister were called and when she was released to go home they reported the matter to the Police at Embakasi who referred her to Nairobi Women Hospital. Following injuries sustained on the mouth and teeth she was also referred to Kikuyu PCEA Hospital which however referred her to Kenyatta National Hospital where she was managed for six (6) months and up to the time of testifying she was still under treatment. It was her testimony that though lovers, they could only cuddle and kiss but they had never engaged in coitus.
5.On March 24, 2014, PW2 Dr. Kizzie Shako a Forensic Medical Practitioner examined the complainant who had a fractured lower jaw. Her genitalia had old hymen remnant.
6.Upon being put on his defence the appellant testified that he planned to cohabit with the complainant therefore per the norm, on February 12, 2014they went to his place where they would cook. That prior to his relationship with the complainant he had a previous relationship with a lady and they had a child that he was supporting, a fact that he had not divulged to the complainant. That on the material date the mother of the child called him asking for money and on hearing about the issue the complainant stormed out of the house and said that she would teach him a lesson that he would never forget for cheating that he would marry her. He attempted to reach her in vain. Thereafter, she called him using her sister FM’s number asking him to meet her on Wednesday. He went only to be arrested. He was informed that the complainant was accusing him of rape and it was also alleged that she had a broken jaw and missing tooth, injuries that she did not have when she left his house. That he explained his part of narrative to the police but they declined to listen to him or even see the book that she used to sign while checking in or out and after he was released on bail, the book was missing.
7.He argued that suspicious medical documents had been created with malicious intent and that SKM and her family had demanded from him a substantial amount of money in order to withdraw the case but on cross examination he denied having evidence of communication between him and SKM’s family. He admitted having had sex with the complainant on the material date an act that he claimed would occur every Wednesday, the only thing that took the complainant to his house as she would not wash for him clothes.
8.The trial court considered evidence adduced and found that the appellant admitted having had sex with the complainant on the material date that it found having not only been non-consensual but also violent and having caused grievous harm to the complainant hence the conviction.
9.The appeal was canvassed through written submissions. It was urged by the appellant that by dint of Section 150 of the Criminal Procedure Code as read with Section 151 of the Evidence Act, the Prosecution failed to avail witnesses to complete the claim of circumstantial evidence that the court relied on. That no evidence was adduced regarding the character of the appellant; if he had any affinity to violence as portrayed by the complainant. That failure for the witnesses to appear was not cogently explained as required by Section 33 of the Evidence Act, and despite the trial court having denied the prosecution the opportunity to testify it still convicted the appellant which was in breach of the rules of fair trial.
10.That there was no DNA evidence to prove that spermatozoa found per the medical reports were that of the appellant. That in his defence the appellant explained that he had consensual protected sex with the complainant and that no coercive circumstances existed. That the appellant was prejudiced as it was difficult to challenge medical evidence tendered in court which was scientific in nature, and its authenticity was not established.
11.He faulted the court for disregarding his defence by connecting the grievous harm to him, a defence that was not displaced. That he was denied court proceedings to prepare for his defence when the court cited Covid 19 Pandemic rules which was prejudicial to him but that notwithstanding he proceeded to defend himself.
12.The Respondent/State opposed the appeal. It was urged that the prosecution produced the Post Rape case form, treatment notes, and medical examination Report which indicted injuries sustained by the victim around her genitals. That there was no existence of consent as the victim was beaten before being violated sexually, therefore, she did not consent to the act. Regarding identification of the assailant, it was argued that it was not mistaken as the complainant knew the appellant, her boyfriend very well.
13.This being a first appellate court I must examine and analyze evidence adduced at trial afresh and reach independent conclusions bearing in mind that I had no opportunity of seeing and hearing witnesses who testified. This duty of the court on a first appeal was stated by the court in Okeno v Republic [1972] EA 32 as follows:
14.I have considered submissions together with authorities cited.To prove the case the prosecutions was required to prove each and every element of the charge. On the first count, the offence of rape is defined by Section 3(1) of the Sexual Offences Act thus:(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;(c)The consent is obtained by force or by means of threats or intimidation of any kind.
15.The prosecution was therefore required to prove the fact of penetration, absence of consent and the perpetrator of the act. Penetration is defined by Section 2 of the Sexual Offences Act as:
16.Consent is basically granting permission for something to happen. The Cambridge English Dictionary defines the term consent as to agree to do something or to allow someone to do something. In the case of Republic v Oyier [1985] KLR 353, the Court of Appeal stated that
17.There is uncontroverted evidence that the complainant being the appellant’s lover went to his house as was the norm. Whether the act of coitus had taken place or not between them previously is immaterial for the question of consent arises at different times. It is argued by the appellant that sexual intercourse between them took place which was consensual, an allegation vehemently denied by the prosecution.
18.It was the testimony of the complainant that the appellant pushed her onto the bed, assaulted her and violently had carnal knowledge of her without her consent. The violence unleashed against her person made her loose her consciousness. After the episode, she regained consciousness to find herself injured. She was bleeding profusely from her genital organ and her jaw was also injured. The complainant alluded to having been taken to hospital by a compassionate and helpful person who however did not testify. But, PW2 FM her sister who was called, found her at the Aga Khan Clinic (Hospital) at Embakasi. She testified that she found her bleeding, cotton wool had been inserted in her mouth. She saw the specimen of mucous strands in urine that was amber and blood stained. She went with the complainant to Nairobi Women Hospital while the complainant was still bleeding and could not talk much but she mentioned Johnstone as the assailant, a person she did not know.
19.Medical evidence in respect of the complainant was adduced by Dr. Shako who examined her twelve days later, after she had been treated at various hospitals. Following the physical examination, she carried out, the complainant had injury on the lower jaw that was fractured. She assessed the degree of injury as grievous harm. Her hymen had remnants which was evidence of numerous sexual interactions.
20.Medical evidence establishing the fact of the complainant having been treated at the outset at Aga Khan University Hospital (Embakasi) and Nairobi Women’s Hospital and by the Maxilla- Facial, Reconstructive Surgeon was adduced in evidence by the Court Prosecutor pursuant to Section 33(b) and 77(3) of the Evidence Act, although the appellant had vehemently objected. The court allowed the application on the ground that the case had taken a long time after the documents were marked for identification.
21.Section 77 of the Evidence Act that is in respect of Reports by experts may allow production of a report by a Medical Practitioner to be used in evidence provided the presumption of its authenticity is met. Section 77 of the Evidence Act provides thus:(1)In criminal proceedings any document purporting to be a report under the hand of a Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence.(2)The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it.(3)When any report is so used the court may, if it thinks fit, summon the analyst, ballistics expert, document examiner, medical practitioner, or geologist, as the case may be, and examine him as to the subject matter thereof.
22.In the case of Ogeto v Republic [2004] 2 KLR 14,17 the Court of Appeal held that:
23.In the case of Soki vs. Republic (2004) 2KLR 21,27 the Court of Appeal held that
24.Medical documents from Agakhan University Hospital, Embakasi Medical Centre were indicated as having been made by a Medical Practitioner, the Medical Laboratory Report from Nairobi Women’s Hospital was by a Laboratory Technologist and a Medical chit from Dr. Bwire G. Barasa, Oral & Maxilla – Facial Reconstructive surgeon was authored by an individual based at Kenyatta National Hospital Doctors Plaza.
25.The court was required to admit such evidence after satisfying itself on the authenticity of the handwriting and the signatories of the makers. The Practise adopted is normally colleagues of the authors or competent witness who come into contact with the writing of the maker in the course of business are called to lay basis before the production of such documents in evidence. By laying basis the witness must be able to establish familiarity of the writing or signature of the author for instance after having worked with the maker for a long period. Then the court is mandated to caution and advise the accused who is not represented by counsel on his right to cross-examine the maker if necessary.
26.In the instant case the Court Prosecutor made an oral application to produce the documents and the court allowed him to produce the documents. He was not a competent witness to produce the documents. The evidence was inadmissible.
27.On its part, the court was concerned with determining the case that had taken long. The trial court fell into error when it failed to satisfy itself of the authenticity of the document and the signature thereon. The court did not interrogate whether or not the makers held the office and qualifications as they purported to have held.
28.The appellant objected to he documents being produced by the court prosecutor but the trial court disregarded the request on account of time that had lapsed. This was not in the interest of justice. It turned out that the Prosecution was compelled to close the prosecutions case on the date the appellant was furnished with the Investigating Officer’s Statement, such that the officer was not called to testify.
29.The question this court should, therefore, grapple with is whether failure to call the Investigation Officer was fatal. In the case of Jeremiah Gathuku v Republic, Criminal Appeal No. 73 of 2008, it was held that:
30.My duty as a first appellate court is to reconsider evidence adduced afresh. From evidence adduced, there was the evidence adduced by PW3. This particular witness could not purport to be familiar with the impugned documents just because she had come across them at the point of filling the P3 Form. However, evidence to be relied on would be that of her own findings following the examination she conducted on the complainant. Therefore, in this case the only medical evidence that was admissible was the P3 Form filled by PW3. Her evidence was not challenged at all through cross examination, therefore, the appellant cannot purport to cast aspersion to her testimony at the appellate stage.
31.This is a case where the appellant does not dispute having penetrated the complainant on the fateful date. PW3 found the complainant having not only remnants of the hymen but she had some physical injuries. The trial court which observed the complainant’s demeanour in court found her to have been truthful as she recounted step by step what befell her. It has been held in the case of Kassin Ali v Republic Criminal Appeal No. 84 of 2005 (Mombasa) that the fact of rape can be proved by evidence of a victim or circumstantial evidence.
32.There was direct evidence of what transpired after the appellant pointed out that the complainant disgusted him, what happened thereafter was not consensual but a savagely cruel act by a person who had the requisite criminal intent. The penetration in question with the victim complainant was unlawful and intentional which amounted to rape.
33.The defence put up by the appellant of having disagreed with the complainant because of an alleged call from his child’s mother that came up at the defence stage was an afterthought not brought up at the earliest stage to be tested by the prosecution.
34.On the second count, grievous harm is defined by the Penal Code as:
35.The complainant explained how her lower jaw was injured such that she had to undergo treatment and had mandible fixation carried out. PW3 on examining her concluded that she sustained grievous harm that seriously injured her membrane.
36.On the question of sentence, Section 3(3) of the Sexual Offences Act, provided thus:
37.The general principle on whether or not an Appellate Court can interfere with the sentence of the trial court was stated in the case of Ogolla S/O Owoura v Republic [1954] EACA 270 where the court pronounced itself thus:
38.Although the act of rape in the circumstances was violent, considering the fact of the parties herein having been young adults, the appellant having been a young person and first offender, though not remorseful, he needed to be rehabilitated. In the circumstances, I set aside the sentence meted out which I substitute with that of twenty years imprisonment.
39.For the offence of grievous harm, Section 234 of the Penal Code provides that:
40.In the case of Opiyo v Republic [2015] eKLR where the assault was on the head with a sharp object where the victim sustained a deep cut wound which resulted into bleeding, in the brain and fracture of the skull, the sentence was reduced to 5 years imprisonment. Also See Violet Mulayi v Republic KKG HCCRA No. 115 of 2005 [2007] eKLR where the sentence of five (5) years imprisonment was upheld for the offence of grievous harm. I do consider the fact of the offences having been committed in the same transaction. Therefore, I set aside the sentence meted out which I substitute with a sentence of five (5) years imprisonment. The sentences will run concurrently.
41.Accordingly, the appeal succeeds on sentence to the extent stated.
42.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI, THIS 12 TH DAY OF JULY, 2022.L. N. MUTENDEJUDGEIn the presence of:AppellantMs. Adhiambo - DPPCourt Assistant - Mutai