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John Mwashigadi Mukungu -Vs- R, Criminal Appeal NO.227 of 2002 [Unreported]: a Sad Commentary on How Not to Make Good Law

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John Mwashigadi Mukungu -Vs- R, Criminal Appeal NO.227 of 2002 [Unreported]: a Sad Commentary on How Not to Make Good Law The East African Law Journal CASE REVIEWS John Mwashigadi Mukungu -vs- R, Criminal appeal NO.227 Of 2002 [Unreported]: A Sad Commentary on how not to Make Good Law Kya/o Mbobu' Introduction In the recent decision of the Kenya Court theless, it was reported to the village elder of Appeal delivered in Mombasa on 30th whose only immediate offer of assistance January, 2003, the court found itself con- was for the victim to be escorted home. fronted with the vexed question of deal- The following day, the complainant re- ing with a conviction in a sexual offence ported the matter to the Voi Police Sta- based on uncorroborated evidence tion who later (not told if on the same day From the summary of the facts, it is al- or not) arrested and charged the appel- leged that the offence was committed on lant with the offence of rape. Again, the the 20/10/2000 at about 7:30 p.m. at judgement does not reveal what tests were Mwakingali Estate in Taita Taveta Dis- used by the police to identify and con- trict of Coast Province, Kenya. The com- nect the appellant with the offence. plainant was accosted by a man whom she On the basis of this evidence and the evi- identified as the appellant. She was dence of witnesses who spoke to the com- dragged into a nearby house where she plainant soon after the alleged incident, was forcibly stripped naked and forcibly both the trial court and the High Court on I sexually assaulted. Although she 1st appeal found that the complainant was screamed for help, apparently nobody known to the appellant and that was how came to her rescue. Indeed, she testified she identified him.2 that after the assault, the appellant locked No medical evidence was offered to con- her in the house and went away, return- nect the appellant to the alleged offence. ing with another man who also forcibly Yet the trial court found corroboration of had sexual intercourse with her. She did the complainant's evidence in the medial • not identify the second man (although evidence, which was limited to an exarni- she identified the appellant). nation of the complainant for spermato- The matter was not reported to the Police zoa. No evidence of DNA or tissue test- immediately allegedly due to poor tel- ing or other advanced scientific methods ephone connectivity in the area. None- was tendered, which could have elimi- 155 Case Reviews nated any doubt on the identity ofthe per- for corroboration of evidence of a single petrators. sexual assault complainant is discrimina- tory of women. It found that it contra- The trial court as noted above found the vened the provisions of S. 82 of our Re- appellant guilty as charged and convicted publican Constitution which provides him thereby sentencing the accused to that:- serve a term of 10 years in prison. The High Court affirmed this decision. Hence, S 82(1) Subject to sub-sections nd the 2 appeal to the final court. (4), (5) and (8), no lawshall make any provision that is discriminatory either of itself or in its effect. The Law and S 82 of the Constitution (2) Subjectto subsections(6), (8) and (9) no person shall be treated in a dis- Sexual offences have always been suspi- criminatory manner by a person act- ciously regarded by the common law and ing by virtue of any written law or in the courts of Kenya in particular and East the performance of the functions of a Africa generally. As a result, the courts public office or a public authority. as a matter of practice (and not law), have (3) In this section the expression 'dis- required that in the cases of sexual of- criminatory' means affording differ- fences, there is need for corroboration of ent treatment to different persons at- tributable wholly or mainlyto their re- the testimony of the complainant before spective descriptions by race, tribe, a conviction may be entered. Perhaps the place of origin or residence or other most inclusive definition of corroboration local connection, political opinions, is that offered by Prof. A. Keane when he colour, creed or sex, whereby persons surmises that.- of one such description are subjected to disabilities or restrictions to which Evidencecapableof amountingto cor- persons of another such description roboration may be defined as are not made subject or are accorded evidence which is relevant, admissi- privileges or advantageswhich are not ble, credible and independent and accorded to persons of another such which implicates the accused person description. in a material particular.' But what if the alleged sexual assault is Indeed the question of the need for cor- against a male victim. Will the victim roboration in sexual offences has vexed suffer will the victim suffer without the many Jurists. Not least of all being the punishment of the perpetrator of the of- fence. Why should the Court of Appeal, High Court of Kenya in the Maina V R ~ the highest court in the land assume that case cited by the Court of Appeal in its judgment. only members of the female gender might fall prey to sexual assaults. Could the This notwithstanding, the court nonethe- 'mischief' discovered by the Court of less found that the practice requirement Appeal not be cured if an amendment 156 The East African Law Journal were made to the relevant provisions of Further, the Court of Appeal of Kenya the Penal Code to widen the scope of the prides itself of deciding cases principally offences to incorporate men? on the issues before it. Time without number, the court has chided many a To my mind, the Mukungu decision is li- lower court Judge and magistrate for de- able to be critiqued on a number of is- ciding cases on a whimsical basis with- sues. out regard to the issues as framed and presented." In the Mukungu Case, the Critique court seems to have forgotten its usual The decision of the Court of Appeal, while stand on such matters. Without hearing laudable and quite in keeping with the or indeed inviting submissions on the ethos of the day seems to be quite per- point, the court 'suo moto' went out of its plexing. way and found that the practice of the To understand the problem, one has got courts in calling for the corroboration of to understand that the Court of Appeal of sexual offences was unconstitutional. Kenya, like any court in its position, is a But who put forward this argument be- court of limited jurisdiction. The Court fore the court? Will the court in future of Appeal has itself repeatedly stated that simply frame any issue, which comes to it is not a court of original jurisdiction qua mind and purport to decide the same in the High Court. Rather, it is a court, total disregard of the issues before the which acts only on those matters referred court? Will this set a good precedent in to it limiting its consideration thereof to the development of our criminal jurispru- the issues presented before it. In other dence in Kenya? words, the court may not arrogate itself a Lastly, in making its unanimous judge- jurisdiction it does not have. ment the court with respect made an as- In this case, the Court of Appeal carefully sumption. The assumption was that summarized the facts and the applicable sexual offences may only be perpetrated law. And the court came to the conclu- by members of the male gender to mem- sion that the appeal before it raised only bers to the female gender. It is all too one point of law i.e. whether a convic- easy to assume that men are never the tion based on uncorroborated evidence is subject of sexual assaults. In the case of sustainable in a sexual offence case. No Burgess -vs- R5 the English Court of Ap- constitutional question was urged before peal about 50 years ago took cognisance • the court. Yet in a complete departure of this possibility holding that it is just 11s from the foregoing settled principles, the desirable that a jury be warned of the dan- court proceeded to reach out to the Con- ger of convicting on the evidence of the stitution and to hold that the practice of the courts was unconstitutional and con- complainant in the absence of corrobora- travened S. 82 of our Constitution. tion in the case of indecent assault on an 157 Case Reviews adult male as in any other case of inde- Notes cent assault or sexual offence. The judges I. The offence of rape is defined in S 139 of the English Court of Appeal would of the Penal Code of Kenya(Cap 63, laugh at the decision of their Kenyan Laws of Kenya). The subsequent pro- counterparts in the case under review! visions between S. 140-167 of the code cover various forms of sexual as- Of course, the Kenyan court would hide saults and the applicable sentences. It behind the provisions of the Penal Code is regrettable that the code assumes which define rape and other sexual as- that such offences may only be per- saults rather restrictively. Our submis- petrated against female persons. sion though is that that is not enough. The 2. We are not told whether the appellant Penal Code is not cast in stone. It should admitted knowing the complainant on his part.. be amended to bring it in line with such 3. A. Keane, the Modern Law of Evidence, an obvious possibility. 4th Ed. Butterwrths, London, Dublin, Ed- To my mind, the decision of the Court of inburgh, 1994,p.149.
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