The Kiambu High Court has dismissed an appeal by a man who had been sentenced to 10 years imprisonment for raping a friend to his estranged wife in Githunguri Sub-County in 2019.
Lady Justice Esther Maina after reviewing the appeal case concluded that all the ingredients of rape were proved against reasonable doubt, and that the complainant was truthful, consistent and steadfast.
Patrick Kamau N’gan’ga had appealed against the conviction by Githunguri Senior Resident Magistrate Mr. M. Ochieng on grounds that he did not plead guilty at trial. He was also aggrieved that the trial magistrate erred in law and fact by not considering that he had a grudge with the complainant and the other witness who was his former wife.
Among his other grounds is that he was framed by his former wife and her friend as revenge for a broken relationship and that her efforts to reconcile with him had flopped. He also complained that he had not been given witness statements, exhibits and medical reports during his trial before the lower court.
In her review, Justice Maina stated that the complainant testified what transpired on the material day at 4.00 am when the appellant broke into her house where she was babysitting for her friend.
The court heard that he brandished a knife and threatened to cut her if she screamed. Further, he got hold of her neck and covered her mouth and forcefully undressed her. She complied as ordered and he threatened to kill her if she disclosed the crime.
The judge observed that the complainant knew the appellant very well as she had met him in her friend’s house on several occasions prior to the incident. The scene was lit from the electricity which was in the house and that she was able to see him.
“This was therefore evidence of recognition and I am satisfied that the circumstances favored a positive identification free from any possibility of error,” she noted.
The Judge observed that there was proof of penetration since the complainant was an adult and was able to explain what exactly happened to her.
Justice Maina continued to explain that the complainant reported the matter immediately before her friend returned home and that it was evidence of her consistency which makes her evidence more credible and reliable.
The appellant was represented by Miss Njeri Gathua, who submitted that the trial was unfair because he was not given a chance to cross examine the complainant.
For ODPP Mr. Stephen Kasyoka, a state counsel submitted that the prosecution provided all the elements of the offence in that there was evidence that the appellant used a knife to threaten the complainant so that she could yield to the sexual Act. He stated that the appeallant was also positively identified and urged the court not to disturb the conviction and sentence.
Lady Justice Maina heard the appeal during the September Service Week when courts receive Judges to help in the decongestion of backlog of cases. She is in-charge of Nyamira high court.
By Lydia Shiloya
