[2023] KEHC 25863 (KLR)

Abdulsalim v Republic (Criminal Appeal E005 of 2023) [2023] KEHC 25863 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25863 (KLR)

Republic of Kenya

In the High Court at Malindi

Criminal Appeal E005 of 2023

AK Ndung'u, J

November 30, 2023

Between

Said Abdulsalim

Appellant

and

Republic

Respondent

(From original Conviction and Sentence in Malindi CM Sexual Offences Case No E086 of 2021– I Thamara, RM)

Judgment

1. The Appellant, Said Abdulsalim was convicted after trial of defilement contrary to section 8(1) as read with section 8 (3) of the Sexual Offences Act, No 3 of 2006. On 15/12/2022, the Appellant was sentenced to twenty- five (25) years imprisonment.

2. The particulars were that on the 28/10/2021 within Malindi Sub-County in Kilifi County, intentionally and unlawfully caused his penis to penetrate into the vagina of MJK a girl aged 14 years.

3. The Appellant challenges the conviction and the sentence vide an amended petition of appeal filed on 21/07/2023. The conviction and the sentence are being challenged on the following grounds;i.The learned magistrate erred by convicting the Appellant and failed to find that penetration had not been proved.ii.The learned magistrate erred by failing to appreciate that the complainant’s age was not proved.iii.The learned magistrate erred by convicting the Appellant and failed to find that the medical evidence did not corroborate the complainant’s evidence.iv.The sentence imposed was harsh and excessive for it was mandatory and failed to consider the Appellant’s mitigation and circumstances of the case.

4. The appeal was canvassed by way of written submissions. In his written submissions, the Appellant argued that the prosecution failed to prove the element of penetration in that the evidence of the complainant did not bring out clearly the evidence of penetration since the words she used ‘akachukua mdudu wake akawueka hapo kwangu kwa kwenda haja ndogo’ left doubt as to what was inserted. Further, PW1 did not explain what she saw, heard, felt or even experienced. He submitted that a broken hymen and reddening of the vagina could not prove defilement. Further, the doctor did not mention when the hymen was broken. That PW2 ‘s sentiments that she examined her daughter and found that her vagina was reddish cannot be termed as proof of penetration as she was not a medical expert. He submitted that the medical evidence did not corroborate the charge in that the P3 Form indicated that the sexual intercourse was habitual as from 23/10/2021 to 28/10/2021 whereas the charge sheet indicated that the offence was committed on 28. 10. 2021.

5. As to the age of the complainant, he submitted that the same was not proved to the required standard. He stated that the complainant testified that she was 13 years whereas PW2, her father stated that she was 14 years. That the age assessment report that was produced by PW3 indicated that she was 14 years. However, PW3 was not the maker of the age assessment report. That the age assessment report also failed to state upon what parameters the examiner used to arrive at that age. Further, that the qualifications of the examiner were never interrogated and it was not clear whether the examiner existed or it was a creation of the prosecution. That the age assessment was not thorough and failed to explain the criteria that was used. Reliance was placed on the case of Peter Maina Njeri vs R (2016)eKLR and the Appellant urged this court to be given the same treatment and be acquitted.

6. He further attacked the unsworn evidence of the complainant where he submitted that the trial court was not justified to have received her unsworn evidence since she was not a child of tender years in line with section 19 of the Oaths and Declaration Act. That a 14-year-old is not subject to voir dire examination. Therefore, PW1’s unsworn evidence did not amount to evidence as it was of no probative value. The reception of her evidence was an illegality that rendered the trial a nullity. Reliance was placed in the case of May vs R (1979)eKLR and Mwangi vs R (2006) 2 KLR.

7. On the sentence, he submitted that the court did not give reasons for enhancing the sentence to 25 years imprisonment contrary to the minimum sentence provided under the law. He urged the court to consider his mitigation and the circumstances of the case to reduce the sentence. Further, that the period he spent on remand be considered.

8. The Respondent’s submissions were based on the Appellant’s previous grounds of appeal which he later amended. Counsel did not respond to the Appellant’s amended grounds and what he argued in his submissions. She however submitted that the sentence was lawful. That the complainant’s evidence on penetration was corroborated by medical evidence, there were no discrepancies and irregularities in the evidence against the Appellant and that the Appellant admitted to having penetrative sexual intercourse with PW1 thus corroborating her evidence. On the Appellant’s defence, she submitted that the same was considered by the court and did not shake, dislodge or controvert the overwhelming evidence against him.

9. This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. See Okeno v Republic [1972] EA 32.

10. I have read and considered the evidence as recorded before the trial court. In so doing, I have taken cognizance that I neither saw nor heard the witnesses testify and I have given due allowance for that fact. I have taken into account the submissions filed and case law cited.

11. A summary of the evidence before the trial court was as follows. The complainant testified as PW1, she testified that she was 13 years old and in Grade Five. The Appellant was their neighbour since 2020. She stated that on the material day, she was hiding at the back of their house since her father wanted to beat her since he had seen her riding the neighbour’s bicycle. The Appellant found her there and he carried her like a small baby and warned her not to make noise or he would kill her. He took her to a house then she stated ‘akanifanya kama bibi yake. Alinifanyia tabia mbaya. Anilivua nguo akanipanua miguu akanifanyia tabia mbaya’. She stated that she had worn a skirt, shirt, panty, biker and she had covered herself in a leso. He removed her skirt. biker and panty, laid her on the floor and removed her clothes. That he told her not to make noise or else he was going to cut her head. He spread her leg then ‘akachukua mdudu wake akauweka hapo kwangu kwa kuenda haja ndogo.’ He defiled her the entire night and in the morning, he told her to go to her uncle’s place and should not say that he did ‘tabia Mbaya’ to her. He also instructed her to say that she had slept at a toilet near their home.

12. She testified that her uncle escorted her home and the Appellant got into his room. She stated that they were living in the same compound with the Appellant as the Appellant’s house was the first and theirs was third. Upon getting home, her mother asked her where she had slept and the Appellant at that time was standing at his door and was talking to her through signs telling her to keep quiet or else he will cut her neck. She testified that she was taken to school and she reported to her teacher what the Appellant had done. A report was made at the police station and thereafter she was taken to hospital. The Appellant had attempted to have sex with her on other two times in the bathroom and in the banana thicket but she ran away.

13. On cross examination, she testified that she did not scream since he had warned her. That she had not informed the Appellant where she had hidden herself on the material night but the Appellant saw her while at the barbershop. She stated that she did not know that the Appellant had a relationship with her mother and that she had not promised the Appellant love.

14. PW2 was the complainant’s father. He testified that he left work and found the complainant riding the neighbour’s bicycle. He called her but she ran away. In the evening, he asked her what happened during the day. She did not respond but ran away. He returned home at 10:00pm and his wife informed him that the complainant had not returned. His wife did not find the complainant even in the morning. He went to work and his wife called him informing him that the complainant had returned home accompanied by his uncle and was saying things she could not understand.

15. He went home and his cousin informed him that the complainant had gone to his house and requested him to accompany her home since she had said that the father wanted to beat her. He did not manage to talk to her so he left for work. He testified that the complainant told her teacher what had happened and his wife informed him that the Appellant had defiled her daughter. He went to the police station where they reported and on the next day, they went to hospital. He testified that the complainant was 14 years old and the Appellant was their neighbour.

16. On cross examination by the Appellant, he testified that he wanted to beat her since she was riding a bicycle in school uniform and she was supposed to have gone back to school. He stated that there was no distance between their houses since the Appellant was living in room 1 and they were living in room 2. That the complainant was brought in the morning by her uncle.

17. PW3 was the Clinical Officer. He produced the P3 Form that was prepared by Dr. Rimba. He testified that the complainant had injuries on the vagina and that pregnancy and other tests were negative. He identified the age assessment and lab tests results and they were marked for identification. He testified on cross examination that the P3 Form was filled on 01/11/2021, 7 days after the alleged defilement.

18. PW4 was the Investigating Officer. He narrated in material detail what was reported to him. He produced the P3 Form as Pexhibit1, Treatment Notes as Pexhibit2, Lab Request Form as Pexhibit4, and Age Assessment Report as Pexhibit3.

19. The Appellant in his defence gave unsworn testimony. He testified that he had quarrelled with his pregnant wife due to his affair with the complainant’s mother. On 30/10/2021, a neighbour asked him what was happening between him and the complainant and he responded that nothing was happening. He had warned the complainant’s mother to leave his family alone. In November, he heard some commotion and an Officer got into his house alleging that he had defiled a child but he denied it. He stated that the complainant’s mother had threatened him and the matter was as a result of the said threats.

20. That was the totality of the evidence before the trial court. It is trite that for the charge of defilement to stand, the Prosecution must prove the age of the victim (must be a minor), that there must be penetration and a clear identification of the perpetrator. This is provided for under Section 8(1) of the Sexual Offences Act No. 3 2006.

21. Having established the ingredients of the charge, the question that this court should therefore determine is whether those ingredients were proved to the required standard.

22. Proof of age is important in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR), the Court of Appeal stated that:“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”

23. In the present appeal, the Appellant position is that the age of the complainant was not proved to the required standard on account that the complainant testified that she was 13 years whereas PW2, her father stated that she was 14 years. That the age assessment report that was produced by PW3 indicated that she was 14 years. However, PW3 was not the maker of the age assessment report. That the age assessment report also failed to state upon what parameters the examiner used to arrive at that age. Further, the qualifications of the examiner were never interrogated and it was not clear whether the examiner existed or it was a creation of the prosecution.

24. From the trial court record, PW3 only identified the Age Assessment Report that was prepared by a Medical Superintendent from Malindi Sub-County Hospital and it was marked for identification. PW4, the Investigating Officer is the one who produced the Age Assessment Report as an exhibit.

25. It is trite law that evidence touching on expert opinion should be tendered by experts as provided under section 48 of the Evidence Act and in situations where the evidence of such experts cannot be procured without unreasonable delay or expense, other experts working in similar field of expertise and who are familiar with handwritings of the unavailable experts can be called upon to tender such evidence as provided under section 33 of the Evidence Act which states that;Statements, written or oral, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases—(a)……………………………………………………(b)made in the course of businesswhen the statement was made by such person in the ordinary course of business, and in particular when it consists of an entry or memorandum made by him in books or records kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him;

26. Such evidence is admissible and by dint of section 77 (1) of the Evidence Act, the evidence is presumed genuine and authentic. The provisions section 77 of the Act on its own allows a person other than one who prepared a report to produce it provided that the presumption of authenticity is met and if the document is signed by the person who held the office and qualifications which he professed to hold at the time when he signed it. The section provides;“77(1)In criminal proceedings any document purporting to be a report under the handwriting 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 the signature of any such document is genuine and that the person signing it or the office and qualifications which he processed 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 maybe, and examine him as to the subject matter there of”.

27. The condition precedent to the operation of section 77 is provided under section 33 which means that a basis has to be laid before a witness other than the maker of a document can competently tender the evidence.

28. In the instant case, no explanation was tendered as to why the maker could not produce the age assessment report. PW4 was the Investigating Officer and therefore he could not attest to the handwriting of the maker. Even though the Appellant did not object to the production of the Age Assessment Report, in the eyes of the law it was inadmissible in evidence. It therefore follows that the age of the complainant could not be proved through the Age Assessment Report which was irregularly produced.

29. Where the actual age of the victim is not proved, the apparent age of the victim shall suffice. The Court of Appeal in Jackson Mwanzia Musembi v Republic [2017] eKLR quoted with approval its earlier decision in Evans Wamalwa Simiyu vs. R [2016] eKLR and held that:-“Consequently, where actual age of a minor is not known, proof of his/her apparent age is sufficient under the Sexual Offences Act.”

30. Further, in Thomas Mwambu Wenyi v Republic (2017) eKLR the Court of Appeal cited with approval Francis Omuromi Vs. Uganda, Court of Appeal Criminal Appeal No.2 of 2000 which held that:-“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may be proved by birth certificate, the victim’s parents or guardian and by observation and common sense….”

31. In Evans Wamalwa Simiyu (supra) the Court of Appeal observed that –““As to whether the appellant’s age fell within 12 and 15 years of age, the evidence was rather obscure. Although the complainant testified that her age was twelve years, she did not explain the source of this information. The Complainant’s mother did not offer any useful evidence in this regard as she did not say anything about the complainant’s age. This leaves only the evidence of Dr. Mayende who indicated at Part C of the P3 form that the estimated age of the complainant was 12 years. We have anxiously considered the purport of this evidence since the Doctor does not appear to have carried out a specific scientific age assessment. Nevertheless, we do note that under part C of the P3 form the age required is estimated age and under the Children’s Act “age” where actual age is not known means apparent age. This means that in the Doctors opinion the apparent age of the complainant from his observation was 12 years. Thus, although the actual age of the minor complainant was not established, the apparent age was established as 12 years.What emerges from the authorities is that whilst the best evidence of age is the birth certificate followed by age assessment, a parent’s evidence or a doctor’s finding on apparent age would suffice and this applies to the instant case.

32. Proof of penetration can be either by way of medical evidence or other evidence (See Kassim Ali v Republic Cr. App. No. 84 of 2005 (Mombasa). The Appellant claimed that penetration was not proved to the required standard. He submitted that the words that were used by the complainant to describe what happened were not clear and that the complainant did not state what she felt, what she saw, heard or even experienced. That a broken hymen and reddening of the vagina could not prove defilement. Further, the doctor did not mention when the hymen was broken. He submitted that the medical evidence did not corroborate the charge in that the P3 form indicated that the sexual intercourse was habitual as from 23/10/2021 to 28/10/2021 whereas the charge sheet indicated that the offence was committed on 28. 10. 2021.

33. The Appellant’s view is that the words used by the complainant that ‘akachukua mdudu wake akawueka hapo kwangu kwa kwenda haja ndogo’ left doubt as to what was inserted. The Court of Appeal in acknowledging the use of euphemisms by children when describing acts of sexual intercourse in Muganga Chilejo Saha v Republic [2017] eKLR had this to say;“Naturally children who are victims of sexual abuse are likely to be devastated by the experience and given their innocence, they may feel shy, embarrassed and ashamed to relate that experience before people and more so in a court room. If the trend in the decided cases is anything to go by, courts in this country have generally accepted the use of euphemisms like, “alinifanyia tabia mbaya”, (IE V R, Kapenguria H.C Cr. Case No. 11 of 2016), “he pricked me with a thorn from the front part of this body.”, (Samuel Mwangi Kinyati v R, Nanyuki HC.CR.A. NO. 48 of 2015), “he used his thing for peeing”, (David Otieno Alex v R, Homa Bay H.C Cr Ap. No. 44 of 2015), “he inserted his "dudu" into my "mapaja", (Joses Kaburu v R, Meru H.C Cr. Case No. 196 of 2016), “he used his munyunyu”, (Thomas Alugha Ndegwa, Nbi H.C. Cr. Appeal No. 116 of 2011), as apt description of acts of defilement. We, however, need to remind trial courts that the use of certain words and phrases like “he defiled me”, which are sometimes attributed to child victims, are inappropriate, technical and unlikely to be used by them in their testimony. See A M V R Voi H.C Cr. App. No. 35 of 2014, EMM V R Mombasa H.C Cr. Case No. 110 of 2015, among several others. Trial courts should record as nearly as possible what the child says happened to him or her.”

34. Going by the above cases, the terms used by the complainant are thus acceptable terms to mean defilement when used by child victim.

35. The Appellant further submitted that the complainant failed to describe what she felt what she saw, heard, felt or even experienced. He relied on the case of Julius Kivuva vs R (2015)eKLR where the court was of the view that evidence of sensory details, such as what a victim heard, saw, felt, and even smelled, is highly relevant evidence to prove the element of penetration. The complainant in that case had only stated that the Appellant removed her skirt, pants and biker and they had sex which is different from our case here. The complainant in this case explained to the court in graphic details what the Appellant did as follows;‘akanifanya kama bibi yake. Alinifanyia tabia mbaya. Alinivua nguo akanipanua miguu akanifanyia tabia mbaya. She stated that she had won a skirt, shirt, panty, biker and she had covered herself in a leso. He removed her skirt. Biker and panty, laid her on the floor and removed her clothes. That he told her not to make noise or else he was going to cut her head. He spread her leg then ‘akachukua mdudu wake akauweka hapo kwangu kwa kuenda haja ndogo.’

36. Was penetration proved in our instant case? The record shows a clear breach of the rules of evidence in the production of the Medical Evidence (P3 Form) tendered as evidence of penetration of the complainant, a key ingredient of the offence herein. PW3 the Clinical Officer who testified was not the one who had prepared the P3 Form. He only marked the document for identification and, for inexplicable reasons, no application was made to have him produce the P3 Form only for it to be produced by PW4 a Police Officer. No basis at all was laid why the medical officer who prepared the medical evidence could not be availed. The production of the P3 Form by PW4 was irregular and the piece of evidence was improperly before the court and the trial court fell into error in admitting the document. It is however not lost on this court that defilement can be proved by the evidence of the victim alone as it has been held in a myriad of cases.

37. In Kassim Ali v Republic Cr. App. No. 84 of 2005 (Mombasa) thus;“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.”

38. This is in line with section 124 of the Evidence Act which states that;“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is 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.”

39. I have perused the judgment of the learned magistrate and note that she based the conviction on the fact that the complainant testified that the Appellant inserted his penis into her vagina. She also based the conviction on the strength of the medical evidence. Nothing more was added. As seen earlier, the medical evidence was not properly produced hence the trial court should not have based conviction on the medical evidence. Apart from analysing the complainant’s testimony, the court did not comment further on the testimony. Since the medical evidence is vitiated by breach of the rules of evidence arising from what I can only describe as a casual, un-concerned and nonchalant treatment of this crucial piece of evidence, the only evidence that the trial court would have based conviction on would have been the evidence of the minor.

40. Sadly, as is readily gleaned from the record, the court failed in its duty to comply with Section 124 of the evidence Act, specifically the clause that;“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, (emphasis added) the court is satisfied that the alleged victim is telling the truth.”As indicated earlier, a part from analysing the evidence of the complainant the trial court made no further comment on it. The trial court did not record reasons why it was satisfied that the complainant was telling the truth.

42. I reproduce Section 124 of the Evidence Act for its full meaning and import;“124. Corroboration required in criminal casesNotwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is 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.

43. The reasons for the court's satisfaction must be recorded in the proceedings (See lsaac Nyoro Kimita v R Court of Appeal at Nairobi Criminal Appeal No. 187 of2009; Julius Kiunga M'Birithia v R High Court at Meru Criminal Appeal No. 111 of 2011).”The purpose for the record of reasons is to enable an appellate or a court exercising supervisory jurisdiction to satisfy itself that the power to convict not withstanding lack of corroboration was in the particular case properly exercised and in accordance with the provision of the law and that the resultant conviction was safe.

44. In Julius Kiunga M'birithia v R (supra) Gikonyo J stated;“Similarly, for a conviction to ensue under the proviso to section 124 of the Evidence Act, the trial magistrate must be satisfied that the child is telling the truth, and record the reasons for that belief. Accordingly, under the proviso, there is a sense of caution on the part of the trial court when convicting on the evidence of a single minor witness. The law on the point was settled in the case of CHILA v REPUBLIC (1967) EA 722 at 273 that;‘’The law of East Africa on corroboration in sexual cases is as follows. The judge should warn the assessors and himself of the danger of acting on the uncorroborated evidence testimony of the complainant, but having done so he may convict in the absence of corroboration if he is satisfied that her evidence is truthful. If no such warning is given then the conviction will normally be set aside unless the appellate court is satisfied that there has been no failure of justice’’.

44. In the instant case the sloppy handling of the medical evidence is followed in step by the fatal omission on the part of the trial court to indicate reasons why the court was satisfied that the complainant was telling the truth. In those circumstances, even though the evidence of the complainant would in appropriate cases be enough for a conviction to lie, the failure to comply with section 124 of the evidence Act renders the conviction unsafe.

45. With the result that the appeal against conviction is successful. The conviction is quashed and sentence set aside and substituted thereof with an order that the Appellant be set at liberty unless otherwise lawfully held under another warrant.

DATED SIGNED AND DELIVERED VIRTUALLY THIS 30thDAY OF NOVEMBER 2023A.K. NDUNG’UJUDGE