Divas Kibet Sabila v Republic [2020] eKLR Case Summary

Court
High Court of Kenya at Kitale
Category
Criminal
Judge(s)
H. K. Chemitei
Judgment Date
October 29, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Divas Kibet Sabila v Republic [2020] eKLR


1. Case Information:
- Name of the Case: Divas Kibet Sabila v. Republic
- Case Number: Criminal Appeal No. 48 of 2018
- Court: High Court of Kenya at Kitale
- Date Delivered: 29th October 2020
- Category of Law: Criminal
- Judge(s): H. K. Chemitei
- Country: Kenya

2. Questions Presented:
The central legal issues in this case include:
1. Whether the evidence presented at trial was sufficient to support a conviction for rape under Section 7 of the Sexual Offences Act No. 3 of 2006.
2. Whether the appellant's defense was adequately considered by the trial court.
3. Whether the appellant's sentence was appropriate given the circumstances of the case.

3. Facts of the Case:
The appellant, Divas Kibet Sabila, was charged with rape of a mentally disabled individual (GN) on September 18, 2017, in Transnzoia County. The alternative charge was committing an indecent act with an adult. The prosecution's case included testimonies from several witnesses, including the complainant's mother (PW2) and a clinical officer (PW4), who examined the complainant and found evidence of penetration. The appellant denied the charges, claiming he was falsely accused following a misunderstanding with the complainant.

4. Procedural History:
The appellant was found guilty in the lower court and sentenced to 10 years of imprisonment. He subsequently appealed the conviction and sentence, arguing that the evidence was contradictory, the witnesses were biased (being relatives of the complainant), and that his defense was not given due consideration. The appeal was heard in the High Court, where both parties presented their arguments regarding the sufficiency of the evidence and the merits of the conviction.

5. Analysis:
Rules:
The court examined the relevant provisions of the Sexual Offences Act No. 3 of 2006, particularly Section 3(1), which requires proving penetration, identity of the perpetrator, and lack of consent to establish the offence of rape.

Case Law:
The court referenced previous cases, including the Supreme Court decision in *Francis Muruatetu & another v. Republic*, which allowed for judicial discretion in sentencing. The court also noted the precedent set in *Dismas Wafula Kilwake v. Republic*, which discussed the importance of considering the circumstances surrounding sentencing.

Application:
The court found that the evidence presented, particularly from the clinical officer, supported the finding of penetration, despite the lack of direct evidence of the appellant being caught in the act. The complainant's mental state was corroborated by family witnesses and medical findings, indicating she could not consent. The court also addressed the appellant's argument regarding witness bias, asserting that not all witnesses were related to the complainant and that their testimonies were credible. The appellant's unsworn defense was deemed unconvincing and lacking in probative value.

6. Conclusion:
The High Court dismissed the appeal, affirming the trial court's conviction based on the sufficiency of evidence regarding penetration, identity, and lack of consent. The court also adjusted the appellant's sentence, considering his time served and the possibility of rehabilitative measures, ultimately ordering a one-year probation period after release.

7. Dissent:
There were no dissenting opinions noted in the judgment, as the decision was unanimous.

8. Summary:
The High Court of Kenya upheld the conviction of Divas Kibet Sabila for rape, finding sufficient evidence to support the charges. The court emphasized the importance of consent and the mental capacity of the complainant in its ruling. The case highlights the judicial system's approach to handling sexual offences, particularly in cases involving vulnerable individuals. The decision reinforces the need for careful consideration of evidence and the rights of both the victim and the accused in criminal proceedings.

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