[2022] KEHC 11410 (KLR)

Abdi v Republic (Criminal Appeal E008 of 2021) [2022] KEHC 11410 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11410 (KLR)

Republic of Kenya

In the High Court at Marsabit

Criminal Appeal E008 of 2021

JN Njagi, J

June 9, 2022

Between

Hussein Abdi

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence by Mbayaki Wafula, SRM, in Marsabit Senior Resident Magistrate`s Court Sexual Offence Case No.13 of 2020 delivered on 23/6/2021)

Judgment

1. The appellant was convicted of the offence of defilement contrary to section 8(1) as read with section8(3) of the Sexual Offences Act No.3 of 2006 and sentenced to serve 20 years imprisonment. The particulars of the offence were that on diverse dates between 4th and 5th March 2020 of Marsabit Central Sub-County intentionally caused his penis to penetrate the vagina of SA, a child aged 15 years.

2. The appellant was aggrieved by the conviction and the sentence and filed the instant appeal. The grounds of appeal are:1. That the trial magistrate erred in law and fact by finding for the Appellant’s conviction and sentence without considering that the same was unsafe, as the charge of defilement was not proved beyond reasonable doubt as required by law.2. That the trial magistrate erred in law and fact by finding for the Appellant’s conviction and sentence without considering that the Prosecution’s case was fabricated by the prosecution’s witnesses.3. That the trial magistrate erred in law and fact by finding for the Appellant’s conviction and sentence without considering that the Prosecution’s case was not properly investigated.4. That the trial magistrate erred in law and fact by determining the complainant was a minor without reliable evidence being placed before him.5. That the trial magistrate erred in law and fact by finding for the Appellant’s conviction and sentence without considering the Appellant’s defence which had created doubt to the Prosecution’s case.6. That the trial court erred in law and fact in failing to determine that the prosecution witnesses were largely contradictory and testimonies issued were conflicting.7. That the sentence meted by the trial magistrate is harsh and excessive.

3. The case for the prosecution is that the complainant was staying with her aunt, PW2. That on the 4/3/2020 the complainant`s aunt returned home and found the complainant engaged in a conversation with a boda boda rider outside her gate. The act annoyed the aunt and she scolded the complainant. The complainant then left her aunt`s home and went to the house of her father at Majengo estate. She found the house locked and came to Marsabit town. By nightfall she was still in town and did not know where to sleep. She then came across the appellant who offered her a place to sleep. The appellant took her to his house. They slept on a bed and the appellant forcibly defiled her. On the following day the appellant left her in the house. He went back in the evening. They ate supper.

4. Meanwhile after the complainant went missing from home, her aunt made a report at Marsabit Police Station on 5/3/2020. PC Gichuki PW3 received information as to where the girl was. He was directed to the house. He went to the house on 6/3/2020 at 1am. He found the girl in the house together with the appellant. The appellant was arrested. Both of them were taken to the police station.

5. The case was investigated by PC Winnie Wafula PW6. She took the girl to Marsabit County Hospital where a P3 form was filled by Dr. Jaldesa PW4. The hymen was found broken. A vaginal swab revealed presence of puss cells but no spermatozoa. Age assessment was done by Naima Abdullahi PW5 and was estimated at between 15-17 years. The appellant was charged with the offence. During the hearing, Dr. Jaldesa produced the P3 form as exhibit, Pexh.2. PW 5 produced the age assessment report as exhibit, Pexh.1.

6. The appellant when put to his defence stated in a sworn statement that he met the complainant in Marsabit town on the evening of 5/3/2020 at 7. 30pm. That the girl inquired from him whether he knew a boy called Hassan. He said he did not. She told him that she had ran away from home because she had been beaten up. She asked him whether he could offer her accommodation. He asked her whether she would put him in trouble. She said she would not and she started crying. He agreed to give her accommodation and take her to her home on the following day. He took her to his house. At about midnight on the same day he was found in his house with the girl. They were arrested. On the 6/3/2020 they were taken to hospital. He denied that he defiled her.

7. The appeal proceeded by way of oral submissions by the learned counsel for the appellant, Mr. Behailu and the learned Senior Principal Prosecution Counsel, Mr.W.P.Ochieng appearing for the state.

Submissions – 8. Mr. Behailu submitted that penetration on the complainant was not proved. That the P3 form that was produced in the case showed broken hymen but this in itself was not decisive proof of penetration. Counsel cited the case of Dominic Angote v Republic(2020)eKLR where the court cited the Court of Appeal decision in David Mwingirwa vs Republic (2017)eKLR where the court relied on its decision in P.K.W. v Republic where it was held that the mere absence of hymen is not decisive proof of defilement as the hymen can be broken by other factors other than sexual intercourse such as natural tearing or by vigorous physical activity like bicycle riding and gymnastics. Counsel submitted that in this case there was nothing to suggest defilement such as blood stains and spermatozoa.

9. Counsel submitted that the complainant testified that she was forcibly defiled by the appellant on the night of 4/3/2020. That she stayed at the house of the appellant alone on the whole of the following day and it is not until the third day that arrest was made. That this was not the disposition of a person who had been forcibly defiled.

10. It was submitted that there were various versions as to the reason why the complainant left the home of her aunt, PW2 with whom she was staying. That PW2 said that the girl escaped from home after she confronted her upon finding her having a conversation with a man outside PW2`s gate. That the complaint on her part told the Investigating Officer PW6 that she ran away from the home due to mistreatment by her aunt, PW2. That she told the appellant that she was chased away by her aunt. That PW2 said that the girl disappeared from home at 3pm while the girl told the Investigating Officer that she left at 7pm. It was thus submitted that the contradictions showed that the complainant was not a credible witness.

11. It was further submitted that the complaint said that she was defiled on 4/3/2020. That the P3 form captures the date of the offence as 5/3/20. That these were material contradictions in the case. That it was the duty of the trial court to satisfy itself that the child witness was telling the truth and give reasons for so believing. Counsel cited the case of John Mutua Munyoki v Republic (2017)eKLR where the court held that it was not sufficient for the court to say that it believed that the child was telling the truth.

12. Counsel for the appellant submitted that the evidence of the Investigating Officer was that when they arrested the appellant he admitted to have had sex with the girl. That this evidence amounted to a confession which was not admissible as it was not taken before an Inspector of Police as required by section 29 of the Evidence Act.

13. It was submitted that the appellant complained during the trial that he had not been issued with a copy of age assessment report. That there was no record that he was supplied with one. That the prosecution gave different ages for the complainant. Therefore, that it was important for the appellant to be supplied with a copy of the said document. That it was unfair for the trial to proceed without the appellant being given a copy of the document.

14. It was submitted that the minimum sentence for the offence the appellant was charged with is 15 years but he was given 20 years. That the sentence imposed by the trial court was harsh and excessive. Counsel urged the court to set aside the sentence.

15. The prosecution counsel on his part submitted that the charge was proved beyond reasonable doubt. That counsel for the appellant said that they were not contesting the age of the complainant. That all the same the age assessment report indicated that the complainant was below the age of 18 years and therefore a minor. That a minor cannot consent to sexual activity.

16. Counsel submitted that the evidence adduced against the appellant was cogent and overwhelming. That the trial court analyzed the circumstances leading to the commission of the offence and found that there was no reason for the girl to lie against the appellant. That medical evidence corroborated the evidence of the complainant that she was involved in sexual activity. That even if there was no corroboration the court could still convict if it was convinced that the girl was truthful as per the provisions of section 124 of the Evidence Act. That the trial court had the advantage of seeing the girl testify. Therefore, that penetration was proved.

17. It was submitted that the appellant was arrested in the same house with the complainant. That the appellant in his defence did not contest that evidence. That the contradictions that were pointed out in the case are not material to the facts that constitute the offence that the appellant was facing.

18. It was submitted that there was no evidence of confession and trial court never acted on such evidence. That the age assessment report was served on the appellant during the trial. That the appellant cross-examined PW5 who produced the report.

19. Counsel further submitted that the sentence imposed by the trial court was in accordance with the law.

Analysis and Determination – 20. This being a first appeal the duty of the court is to analyze and re-evaluate afresh the evidence adduced before the lower court and draw its own independent conclusions while keeping in mind that the trial court had the advantage of seeing and hearing the witnesses testify -seeOkenovRepublic (1972) EA 32.

21. The ingredients of the offence of defilement that the prosecution is under duty to prove beyond reasonable doubt are the age of the victim, penetration on the victim and identification of the assailant – see Dominic Kibet Mwareng v Republic (2013)eKLR. Counsel for the appellant in the instant case said that they were not challenging the age of the complainant. All the same, the age of the complainant was assessed at Marsabit County Hospital and estimated at between 15 and 17 years. There was thereby sufficient evidence that the complainant was under the age 18 years and therefore a minor for the purposes of the Sexual Offences Act.

22. Neither was identification a major issue as the appellant admitted that the complainant was found in his house. The contested issue is therefore penetration on the complainant.

23. Section 2 of the Sexual Offences Act defines penetration as:‘the partial or complete insertion of the genital organs of a person into the genital organ of another person.’

24. The Court of Appeal in the case of Erick Onyango Ondeng v. Republic(2014) eKLR held the following on what amounts to penetration:“In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured."

25. The complainant testified that the appellant took her to his house in Marsabit town. That on reaching there he removed her clothes and forcibly inserted his penis into her vagina. She tried to stop him but it was all in vain.

26. The trial magistrate in his judgment stated that the medical evidence adduced in the case offered corroboration that implicated the appellant with the commission of the offence. Mr. Behailu submitted that the medical evidence adduced in court did not implicate the appellant as there was no spermatozoa nor injuries found on the complainant. He submitted that the evidence of broken hymen in itself was not proof of defilement as the hymen can be broken by other factors other than defilement.

27. Indeed, as submitted by the counsel for the appellant, there was no medical evidence in support of defilement. The trial magistrate found that except for the broken hymen, there was no spermatozoa detected nor were there injuries on the genitalia. However, the fact that the hymen was broken was not ipso facto proof of defilement. There was no evidence that the hymen was freshly broken. In the case of David Mwingirwa vs Republic (supra) it was held that mere absence of hymen is not prove of defilement. In the same vein, the fact that a swab smear from the complainant showed presence of puss cells which connotes some infection did not prove anything against the appellant as the appellant was not examined to ascertain whether he had an infection that he could have passed to the complainant. In the premises there was no basis for the learned magistrate to hold that the medical evidence adduced in the case offered corroboration to the complainant`s evidence that the appellant defiled her.

28. However, absence of corroborative evidence in a case of defilement is not fatal to the case. Section 124 of the Evidence Act CAP.80 Laws of Kenya allows a court in a case of sexual assault involving a minor to convict on the sole evidence of the minor if the court is satisfied that the minor is truthful and gives reasons for such a finding. The section provides as follows:“Notwithstanding the provisions of Section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him.Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”

29. In John Mutua Munyoki vs. Republic [2017] eKLR, the Court of Appeal observed that the court can in a sexual offence case against a minor convict on the sole evidence of the victim. The court in this regard held that:…..The medical evidence having failed to confirm that JM was defiled, the only other evidence of defilement was that of JM. It is trite that under the proviso to section 124 of the Evidence Act, a trial court can convict on the evidence of the victim of a sexual offence alone. (See Mohamed v Republic (2008) KLR G&F, 1175 and Jacob Odhiambo Omuombo v Republic (supra). However, before the court can do so, it first must believe or be satisfied that the victim is telling the truth and secondly it must record the reasons for such belief.’

30. The same court also in J.W.A. v Republic [2014] eKLR, observed that: -“We note that the appellant was charged with a sexual offence and the proviso to section 124 of the Evidence Act, clearly states that corroboration is not mandatory. The trial court having conducted a voire dire examination of PW1 and being satisfied that the complainant was a truthful witness, we see no error in law on the part of the High Court in concurring with the findings of the trial magistrate.”

31. The question then is whether the trial court was correct in believing the evidence of the complainant that the appellant had defiled her on the evening of 4/3/2020 inspite of the fact that the defilement was not supported by medical evidence.

32. Counsel for the appellant submitted that the disposition of the complainant in this case was questionable in that she went to spend the night with a complete stranger. That she never escaped from the appellant`s house when she was left alone during the day. That she was not forthright as to why she left her aunt`s home.

32. The learned trial magistrate held that the complainant had no reason to lie against the appellant as he is a person who had given her accommodation when she was stranded in town.

33. The offences of defilement and rape can be proved by circumstantial evidence. In Kassim Ali v Republic [2006] eKLR the Court of Appeal the held that:“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.”

34. In this case, the complainant testified that she escaped from her aunt`s house on the 4/3/2020. That she met the appellant in town on the evening of that day and accompanied him to his house to spend the night there. That they slept on the same bed and he defiled her on that night. That on the following day the appellant left her in the house and she spent the whole day in the house. The appellant returned in the evening and they cooked supper. That policemen came to the house at night of that day and found her in the house with the appellant. They were then arrested.

35. The appellant on the other hand says that he met the complainant on the evening of 5/3/2020 and went with her to his house. That policemen went to his house on the same night and found the complainant in the house. They were arrested.

36. Though the appellant alleges that the complainant did no spend the night of 4/5th in his house, he never cross-examined her on the issue when she testified in court. The evidence of the complainant that she left her aunt`s house on 4/3/2020 was supported by the said aunt PW2. There is credible evidence that the complainant spent the night of 4/5th at the house of the appellant. That fact provides some circumstantial evidence that corroborates the evidence of the complainant that the appellant defiled her. In Rex v Kipkering Arap Koske10 EACA 135 it was held that for circumstantial evidence to sustain a conviction it must point irresistibly to the accused, that the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. The police found the complainant in the house of the appellant on the night of 5/6th. These facts were incompatible with the innocence of the appellant. The appellant had the opportunity to commit the offence. He slept on the same bed with the complainant. I therefore agree with the finding of the trial court that the complainant was telling the truth that the appellant defiled her on the night of 4/5th March 2020. Penetration was thereby proved.

37. Counsel for the appellant submitted that while the complainant says that she was defiled on 4/3/2020, the P3 form indicates the date to be 5/3/2020 at 1300 hrs. That the complainant`s aunt said that the complainant left her home at 3pm while the complainant told the Investigating officer that she left at 7pm. That the complainant gave various versions of why she left her aunt`s home.

38. The way to treat contradictions and inconsistencies in a case was state in Philip Nzaka Watu v Republic (2016) CR App 29 of 2015, had this to say:“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.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 recognized 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.”

39. I am also guided on the issue by the Court of Appeal decision in Erick Onyango Odeng’ v. Republic[2014] eKLR citing with approval the Uganda Court of Appeal case of Twehangane Alfred v. Uganda Criminal Appeal No. 139 of 2001, [2003] UGCA, 6 in which it was held as follows:“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution case.”

40. I have considered the contradictions that were alluded to in the case. In my view they do not go to the substance of the case neither are they so fundamental as to cause prejudice to the appellant.

41. The appellant`s counsel submitted that the trial court admitted evidence that amounted to a confession that the appellant admitted that he has had sex with the complainant. That the evidence was not taken as provided under section 29 of the Evidence Act. Though the trial court admitted such evidence there is nowhere in the judgment to indicate that the magistrate relied on that evidence as the basis of a conviction.

42. Counsel for the appellant submitted that the appellant complained before the trial court that he had not been supplied with a copy of age assessment report. That there was no record that he was supplied with it. The state responded that the same was served on the appellant during the trial. That the appellant cross-examined PW5 on the report.

43. The appellant did indeed complain to the trial court that he had not been issued with a copy of age assessment report. He however did not raise the issue when PW5 testified in the case and produced the document. The appellant instead cross-examined the witness on the document. It is most likely that the appellant was issued with a copy of the document. Nothing therefore turns on this argument.

44. In the foregoing, it is my finding that the evidence against the appellant was overwhelming, cogent and credible. The appeal on conviction is dismissed.

45. The appellant was charged with defilement under section 8(1) as read with 8(3) of the Sexual Offences Act. The sentence for the offence as provided by section 8(3) is imprisonment for a period of not less than 15 years. The appellant was sentenced to serve 20 years imprisonment.

45. It is trite law that sentencing lies at the discretion of the trial court. In the case ofShadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus:-“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”

46. The Court also inBernard Kimani Gacheru vs. Republic[2002] eKLR restated that:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”

47. The learned trial magistrate did not give reasons on why he considered that the appellant deserved a sentence higher that the minimum sentence of 15 years. In my view the minimum sentence would have been sufficient.

48. The upshot is that the conviction on the appellant is upheld but the sentence meted by the lower court is reduced to fifteen years imprisonment.

DELIVERED, DATED AND SIGNED AT MARSABIT THIS 9TH DAY OF JUNE 2022. J. N. NJAGIJUDGEIn the presence of:Mr. Behailu for AppellantMr. Magero for RespondentAppellant:- PresentCourt Assistant- Peter14 days R/A.