[2022] KEHC 11299 (KLR)

AG v Republic (Criminal Appeal E008 of 2021) [2022] KEHC 11299 (KLR) (7 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11299 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Appeal E008 of 2021

JM Mativo, J

June 7, 2022

Between

AG

Appellant

and

Republic

Respondent

(Appeal against Judgement, conviction and sentence in CMC Criminal Case Number SO No. 3 of 2019, at Shanzu, R. v Allan Gray, delivered by Hon. David Odhiambo, R.M. on 6. 12. 2021)

Judgment

1. This appeal challenges the conviction and sentence imposed inCMCCR SO No 3 of 2019, Shanzu, in which the appellant was sentenced to 20 years imprisonment for the offence of defilement. The principles to be kept in mind by a first appellate court while dealing with appeals are: -11See Ganpat v State of Haryana {2010} 12 SCC 59. a.There is no limitation on the part of the appellate court to review the evidence upon which the order appealed against is founded and to come to its own conclusion;b.The first appellate court can also review the trial court’s conclusion with respect to both facts and law;c.It is the duty of a first appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the decision appealed against or the entire proceedings if they are flawed;d.When the trial court has breached provisions of the Constitution, or, ignored statutory provisions, or misconstrued the law, or, breached rules of procedure, or, ignored crucial evidence, or, misread the material evidence, or, has ignored material documents, or, in any manner compromised the accused rights to a fair trial or prejudiced the accused, etc, the appellate court is competent to reverse the decision of the trial court depending on the materials in question.

2. The above principles were articulated by the Supreme Court of India2as follows: -2K Anbazhagan v State of Karnataka and Others, Criminal Appeal No 637 of 2015. “The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the judge to see that justice is appropriately administered, for that is the paramount consideration of a judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely. The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.”

3. In summation, the first appellate court must itself weigh conflicting evidence and draw its own conclusions.3 It is the function of a first appellate court to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions. Only then can it decide whether the findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.43Shantilal M Ruwala v R (1957) E.A 570. 4See Peters v Sunday Post {1958} E.A 424.

4. The following is an abridged evaluation of the evidence led by the respective parties in the lower court.The prosecution case rested on the testimony of four witnesses namely, the complainant, her mother, a clinical officer and the investigating officer. The essence of the state’s case was that the appellant defiled the complainant since 2014 when she was in class 3 but he only managed to penetrate when she was in class 5 and he continued until 2018 when she reported to her mother. The defence case rested on his sworn evidence and one witnesses. His case was that he did not commit the offence, that at the material time he was not staying with the complaint, that the charges were a creation of the complainant to cover her character and the court failed to appreciate the sour relationship between him and the complainant’s mother.

5. In a nutshell, the complainant testified that they (herself, her brother and mother) used to live with the appellant who is her step-father, that the appellant started touching her breasts when she said was in class 3 in 2014 and told her not to tell her mother who used to work night shifts at a hotel. She said he took her to his room and sexually assaulted her but he was not able to penetrate so he used oil and his fingers. She said he managed to penetrate when she was in in standard 5, and in class 6 she started menstruating and he continued to defile her but she did not tell her mother. She said the appellant used to give her money and snacks and he told her they would suffer if she told her mother in the event he is jailed. She said in December 2018 she opened up and told her mother who cried and packed her clothes and they went to her grandmother and the following day they went to the police station and recorded statements. They were referred to Mtwapa health care where her P3 form and PRC forms were completed. On cross-examination she testified that her virginity was broken by the appellant in 2016. She also said the appellant and her mother used to quarrel.

6. Her mother, PW2, Regina Ndinda, testified that on December 29, 2018 while at work she called her children and her young son answered the phone and told her that the complainant had gone to the shop. She said she called after sometime and she was still not there so she got worried and went home and asked her where she was and she started crying, but later she opened up and told her that the appellant had been having sex with her since she was in class 5. She said that the complainant was born in 2006. She said at the hospital they were issued with a P3 form and a PRC form. She said the complainant was her husband since 2007. On cross-examination she said the appellant told her that he did not want to stay with her.

7. PW3 Mr John Musau, a clinical officer at Mtwapa healthcare produced the PRC which was completed by a one Ann Muema with whom they had worked with. He stated that the complainant, aged 12 years went to the clinic on December 31, 2018 and reported that the appellant had been defiling her since she was 9 years and the last incident was one-month agio. He also said her hymen was broken. He produced the P3 form &PRC forms. Upon cross-examination, he that from the history, there was penetration.

8. PW4, CPL Harun Ali testified that the complainant complained that her step father had defiled her, that he referred them to Mtwapa health care for treatment and the PRC form was completed. He said he issued her with the P3 form and he recorded their statements.

9. In his sworn defence, the appellant testified that he was living with the complainant’s mother, her daughter and son. He stated that on January 5, 2018, police officers asked him to accompany them to Mtwapa police station and at the station he was told he had been touching the complainant inappropriately. He was held at the station and later he was charged in court. He denied committing the offence. He said he had a good relationship with the complainant’s mother, but she used to have affairs with other men and in January 2016, he went to live alone, but they reconciled in December 2016. He said she used to get calls which she could not answer in his presence. He said that one day the complainant asked him if he knew the person who was calling her mother, and she said one time they went to Nairobi and visited the person and she saw him holding hands with him. He said that the complainant asked her whether he was aware what happened to her father, and she told him that her mother had an affair with a cook who weas her workmate. He said 4 days later the complainant told her mother what she was telling him then he packed and left. He said that in 2018 they went to church and the complainant went home ahead of them, but later her brother found her with a boy.

10. Upon cross-examination, he said he regarded the complainant and her brother as his children and he provided for them and attended school meetings. He said he has never been alone with the complainant in the house. He said he would stay with the children when his ex-wife was on night duties. He said in 2011 he was living in her father’s house and they started a relationship, and that in 2013 they broke up for 4 months and reconciled after her parents intervened. He also said she had an affair with someone he could not tell.

11. DW2 Mr Michael Kamau Olel, a gynacologist, said he is a graduate of the University of Nairobi and holds master’s degree in obstetrics and reproductive health. He said he had worked as such since 2004. He testified as an expert. He prepared a medical report dated July 27, 2021 which he produced in court. It was his testimony that a proper examination was not done, that the hymen is between the vulva and the vagina, and that the cervix is at the end of the vagina. He said that there was no documentation of the examination of the vagina, yet a proper examination reveals what is inside, and it is not possible to conclude that the hymen was broken without a proper examination. He stated there is no documentation of the instruments used to examine the girl. He also stated that the PRC did not have a name and that the examination was incomplete because it was not possible to conclude that there was penetration. He also testified that it was not possible for the complainant to perform well in school while she was being abused. He also stated that no DNAevidence was recorded in the PRC form. On cross-examination, he stated that he cannot form an opinion without examining the complainant.

12. In his judgment, the learned magistrate addressed his mind to three key ingredients, namely, penetration, age of the complainant and identification of the offender. He was satisfied that these three ingredients were established to the required standard. He dismissed the appellant’s defence and the evidence of DW2 and pointed out that having not examined the complainant, he could not have formed a comprehensive opinion. He found that the prosecution had proved the offence of defilement contrary to section 8(1) (3) of the Sexual Offences Act and sentenced the appellant to serve 20 years in prison.

13. The appellant seeks to upset both the conviction and sentence citing 7 grounds which can be reduced to four. (a) whether the prosecution proved the offence of defilement; (b) whether the learned magistrate erred in law by invoking section 124 of the Evidence Act;5(c) whether the learned magistrate failed to consider the sour relationship between the appellant and the complainant’s mother; (d) whether the learned magistrate shifted the burden of proof to the appellant.5Cap 80, Laws of Kenya.

14. The appellant’s counsel submitted that there were glaring inconsistencies on the prosecution evidence particularly the P3 form. He argued that the complainant’ genitals was shown as normal in the P3 form yet the same P3 form shows the hymen was perforated which he argued amounted to an inconsistency/contradiction and cited KM v Republic6 in support of the proposition that glaring inconsistencies have a direct consequence on proof of an offence. Additionally, he argued that the P3 form in the record of appeal is not the one in the lower court’s file because the words “hymen” and “perforated” were inserted by using a different ball pen colour and the changes were initialled “JM” and dated March 14, 2019 and John Musau’s signature who had signed the P3 form was missing on the tempered P3 form.6[2018] e KLR.

15. He argued that neither the prosecution nor the court alerted it of the existence of the alterations in the P3 form nor was there any application to amend the P3 form. He argued that there is a possibility that the alteration was done after the hearing. He submitted that the evidence of PW1 & PW3 during cross-examination which created doubt as to whether there was penetration was ignored. He cited Langat Dinyo Domokonyang v Republic7 and LM v Republic8 in support of the proposition that the age of injuries noted on the genitalia must be brought within the time the offence was allegedly committed. He argued that PW3 did not bring any injuries within the time of the offence, hence, there was absence of corroboration.7[2017] e KLR.'8[2020] e KLR.

16. Counsel argued that the doctor who completed the P3 form was not the same doctor who examined the complainant and that his testimony was sourced from the history given to him rather than direct examination. He relied on TNM v Republic9 which faulted the trial court for failing to note that the victim was not physically examined by the doctor who completed the P3 form and the failure to produce the PRC at the trial. He argued that the PRC tendered did not prove any aspects of the case nor did it contain the complainant’s name and that the outpatient notes bearing the patient’s number were not produced. He cited Nicholas Kipngetich Mutai v Republic10 and argued that it made an adverse finding against the prosecution when a PRC was produced without treatment notes.9[2017] e KLR.10[2020]e KLR.

17. Additionally, counsel submitted that there were discrepancies and contradictions between the PRC and the P3 form, such as the failure to disclose that the incident occurred on November 15, 2018 or any time, and the indication that the hymen was normal. He argued that the trial court should have accorded the unaltered P3 form much weight and relied on Gerald Ritho Waweru v Republic11in support of the holding that it is unsafe to convict where the medical evidence on the hymen is unclear. He submitted that the trial magistrate misapprehended the evidence and found that there was penile penetration without cogent evidence and erred by relying on a tempered exhibit.11[2018 Eklr.

18. He submitted that the trial magistrate erred in fact and in law by failing to make a finding on the date, month or year when the complainant’s hymen was penetrated. He argued that there was contradiction as to when the first sexual encounter took place because the complainant could not recall when it happened. He argued that whereas the complainant stated that it was 2014, PW2 and PW3 reported that it was 2016. He argued that the appellant’s testimony that he was not living with the complainant in 2015 was not challenged and that the medical evidence did not show when she lost her virginity. He submitted that there was a contradiction as to when the complainant was last sexually assaulted. To support his argument, he cited PW1’s testimony that she was assaulted in August 2018 and her report at Mtwapa health centre that she was assaulted on November 15, 2018. He faulted the trial magistrates findings that her hymen was broken despite the said contradictions and failing to determine when the crime was committed.

19. Additionally, the appellant’s counsel argued that the trial magistrate erred by wrongfully invoking the provision of section 124 of the Evidence Act before satisfying herself that the complainant was telling the truth considering the contradictions highlighted earlier. (Citing Nicholas Kipngetich Mutai v Republic (supra). He also relied on S v Sauls and others12 in support of the proposition that the court must satisfy itself that the truth has been told. He singled out what he described as different versions of the complaint to further buttress his argument that the evidence was full of contradictions.121981 (3) SA 172 (A) adopted in The State and Ngwako Herald Ndebele, Case No. A207/2016, para 30.

20. The other argument propounded by the appellant’s counsel was that the trial magistrate invoked section 124 of the Evidence Act and noted that the complainant had knowledge and confidence of what happened to her. Counsel described the said consideration as the “demeanour test” and submitted that it was the wrong test. He cited Pandya v Republic13andJoshua Karianjahi Waiganjo v Republic14 and argued that the demeanour test is subservient to the satisfactory test. He also cited State v Ngwako Herald Ndebele15 in support of the holding that to determine whether or not a single witness was credible was dependant on the content and manner of the witnesses’ evidence, the circumstances of the case and the issues raised. He also relied on Joshua Karianjahi Waiganjo v Republic(supra) and Joseph Chirchir Kabuchie v Republic16 in support of the holding that where the medical evidence presented by the prosecution itself appears to raise doubts as to the defilement or sexual offence, the court is entitled to consider whether the offence has been proved beyond reasonable doubt.13[1957] EA.14[2017] e KLR.15Case No. A207/2016, at page 35. 16[2019] e KLR.

21. The other argument mounted by the appellant’s counsel is that the trial magistrate misconstrued the proviso to section 124 of the Evidence Act. To him, this provision means that the entire prosecution case rests on the evidence of a single witness, yet PW3’s evidence also found that there was penile penetration. He relied onNocholas Kipngetich Mutai v Republic.17 Additionally, the appellant’s counsel submitted that the learned magistrate failed to accord weight to the soured relationship between the complainant’s mother and the appellant and cited Rashid Omar Parapa v Republic18 in which the defence of a prior relationship with the mother was successfully raised.17[2020] e KLR.18[2019] e KLR.

22. The other line of argument advanced by the appellant’s counsel was that there was a significant motivation for the appellant to make the accusations so as to conceal her whereabouts on the evening of December 29, 2018. He relied onOKK v Republic19 which found that a complainant had reason to make false allegations having been found to have absconded from school.19[2021] e KLR.

23. Further, the appellant’s counsel submitted that the learned magistrate shifted the burden of prove to the appellant. He faulted the trial magistrate for excluding the expert evidence and for convicting the appellant. He argued that an alibi was established the moment the appellant said he was not living with the complainant’s mother and argued that the moment the complainant failed to establish the circumstances under which she was defiled, the prosecution ought to have applied to adduce further evidence. (citing Michael Mumo Nzioka v Republic20). He argued that once an accused raises an alibi, the onus is on the prosecution to dislodge it.20[2019] e KLR.

24. Also, the appellant’s counsel faulted the trial court for failing to carefully evaluate the evidence of recognition and satisfy itself that it was safe to convict. (citing Julius Kiunga Mbirithia v Republic21). He took issue with the fact the complainant took 4 years to disclose the defilement and submitted that even one circumstance creating doubt is sufficient to justify an acquittal and relied on Elizabeth Withirgeni Gatimu v Republic followed in Michael Mumo Nzioka v Republic.22He argued that the prosecution did not discharge the burden of prove as laid down in Woolmington v DPP.2321[2013] e KLR.22[2019] e KLR23[1935] 462, 481-2.

25. The respondent’s counsel submitted that the ingredients of the offence, namely, penetration, age of the victim and identity of the perpetuator were proved to the required standard. As for the allegation that the P3 was tempered with, counsel submitted that the alteration was counter-signed and dated. She pointed out that the medical officer testified that all other findings were normal except for the perforated broken hymen. She also argued that the appellant’s counsel had the opportunity to cross-examine PW3 if at all the P3 form in his possession was different as he alleges. She distinguished the decision in LM v Republic24 which held that contradictions in the date of a P3 per se is not a ground for quashing a conviction.24[2020] e KLR.

26. Additionally, the respondent’s counsel submitted that the introduction of PW3’s evidence was not objected to, and section 77 of the Evidence Act allows a report of a medical practitioner to be used in evidence. She also submitted that section 77(2) of the Evidence Act allows the court to presume the signature on such document to be genuine. As for the argument that the PRC did not show PW1’s name, she submitted that it has a patient’s number which is also replicated in the P3 form. She submitted that the medical evidence contained in the PRC was reliable evidence and relied on Isaac Obongo Onyinkwa v Republic.2525[2019] e KLR.

27. Regarding the alleged contradictions, she cited Willis Ochieng Oderi v Republic26in support of the holding that minor contradictions are not grounds for quashing a conviction. She also relied onPhilip Nzaka Watu v Republic27 which held that whether discrepancies in evidence render it unbelievable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question. She argued that it’s not possible to expect a child of tender years to follow the sequence of events. Additionally, counsel relied on Erick Onyango Odeng v Republic28 which underscored that the primary duty of the court is to carefully analyse the contradictory evidence and determine which version of the evidence on the basis of judicial reasons, it prefers. She also submitted that section 124 of the Evidence Act removed the requirements for collaboration in cases of this nature.26[2006] e KLR.27[2016] e KLR.28[2014] e KLR.

28. Counsel submitted that penetration was proved and relied onBassita v Uganda29 which held that sexual intercourse may be proved by direct or indirect circumstantial evidence. She also citedJWA v Republic30which held that corroboration is not mandatory, but what matters is the truthfulness of the evidence. Regarding the alleged discrepancies, she cited Joseph Maina Mwangi v Republic31 which held that in every trial there are bound to be discrepancies and an appellate court in considering those discrepancies must be guided by the wording of section 382 of the Criminal Procedure Code32 which is whether such discrepancies are so fundamental as to cause prejudice to the accused. Also, she cited Dickson Elia Nsamba Shapwata & another v Republic33which held that the court has to consider whether inconsistencies and contradictions are minor or whether they go to the root of the matter. She submitted that her evidence was corroborated by medical evidence and argued that even in the absence of medical evidence, the court can convict on oral evidence.29SC Criminal Appeal No. 35 of 1995. 30[2014] e KLR.31[2000] e KLR.32Cap 75, Laws of Kenya.33Cr App No 92 of 2007.

29. She also relied on Erick Onyango Ondeng’ v Republic34in support of the proposition that it is not necessary that the hymen be broken and even partial penetration will suffice. Further reliance was placed on George Owiti Raya v Republic35 which held that there can be penetration without going past the hymen.34[2014] e KLR.35[201] e KLR.

30. On whether the prosecution discharged the burden of prove, counsel relied on Bakare v State36 and submitted that the prosecution proved all the ingredients of the offence. On the identity of the appellant, he submitted that he was known to the complainant. (Cited Anjononi and others v Republic37). Lastly, the respondent’s counsel relied on Republic v Sukha Singh s/o Wazir Singh & others38in support of the holding that an alibi ought to be raised early.361985, 2 NWLR (Supreme Court of Nigeria)37[1976-1980] KLR.38[1939] 6 EACA 145.

31. I will start by addressing the appellant’s heavy reliance on the testimony of DW2 Mr Michael Kamau Olel, a gynacologist who described himself as an expert. He stated that he is a graduate of the University of Nairobi and a holder of a master’s degree in obstetrics and reproductive health. He admitted that he never physically examined the patient. His evidence was essentially a critique of the P3 form and the PRC form. He never interviewed the author of the two documents at least to understand the basis of their findings. He never bothered to call for the hospital records to confirm whether they accord with the findings in the two documents. This is an expert who simply sat on his desk, read the two documents and arrived at his conclusions contained in his report. He now calls his evidence expert opinion and seeks to use to dislodge the veracity of the P3 form and the PRC form.

32. I have in several decisions had the opportunity to address the question of expert evidence and how it should be treated. For example, in Stephen Kinini Wang'ondu v The Ark Limited39 I elucidated the law relating to expert evidence with great detail. I am aware the said decision has subsequently been followed in many High Court decisions among them Christopher Ndaru Kagina v Esther Mbandi Kagina & another,40 Mohamed Ali Baadi and others v Attorney General & 11 others.41The decision was confirmed by the Court of Appeal inKagina v Kagina & 2 others42 and as late as April 28, 2022 in Basil Ceriticos v National Bank of Kenya Limited & another.43 Inevitably, I will replicate much of what I articulated in the said decision and approved in the above decisions with minimum modification. Incontrovertibly, expert evidence forms an important part of litigation because it is extremely important for the courts to get the necessary help from those trained in particular fields and in the different technologies in forming an opinion and coming to a conclusion.39[2016] e KLR.40[2016] e KLR.41[2018] e KLR.42(Civil Appeal 21 of 2017) [2021] KECA 242 (KLR) (3 December 2021).43Civil Appeal No. 80 of 2017.

33. Some expert evidence may be based on the result of field visits and site inspections and in other cases the opinions will be treated on analytical reports. Under section 48 of the Evidence Act44 opinions of science or art are admissible if made by persons especially skilled in such science or art. A person specially skilled in art or science is therefore deemed to be an expert. The term science or art usually means any branch of learning which requires a course of previous habit of study in order to obtain competent knowledge of its nature.45 The first and foremost requirement of a party who calls an expert witness is to establish the credentials of the person as an expert, or one who is especially skilled in that branch of science, to the satisfaction of the court. That, is, the witness should fall within the definition of 'specially skilled' as laid down under section 48 of the Evidence Act.4644Cap 80, Laws of Kenya45Judges and Environmental Law, A Handbook for the Sri Lankan Judiciary, Environmental Foundation Limited, at page 125 Available at www.sljti.org-Accessed on 20th October 201746Section 48. (1). When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identity, or genuineness of handwriting or fingerprint or other impressions. (2) Such persons are called experts.

34. The question whether a person is specially skilled within the above provision is a question of fact that has to be decided by the court and the opinion of the expert is also a question of fact and if the court is not satisfied that the witness possesses special skill in the relevant area, his or her opinion should be excluded.47 Failure to prove the competency of a person a party calls into the witness box as an expert presents a real risks of evidence of such a person being ruled out as irrelevant.47H.A. Charles Perera vs M. L. Motha 65 NLR 294

35. The expert witness ought to explain the reasoning behind his opinion. In scientific evidence, the reasoning may be based on the following: - site inspection reports, analytical reports, evidence of other witnesses, and the evidence of the experts.48 Opinion expressed must be confined to those areas where the witness is specially skilled. The weight to be attached to such an opinion would depend on various factors. These include the circumstances of each case; the standing of the expert; his skill and experience; the amount and nature of materials available for comparison; the care and discrimination with which he approached the question on which he is expressing his or her opinion; and, where applicable, the extent to which he has called in aid the advances in modern sciences to demonstrate to the court the soundness of his opinion.49The opinion of the expert is relevant, but the decision must nevertheless be the judge's.5048Judges and Environmental Law, A Handbook for the Sri Lankan Judiciary, Environmental Foundation Limited, Chapter four.49Ibid50The Queen vs K.A. Wijehamy 61 NLR 522

36. DW2’s evidence which is a critique of the P3 form and PRC form which are prepared by persons also trained in the field brings into mind the subject of conflicting expert evidence which brings into focus a passage from a judgment by Sir George Jessell MR in Abringer v Ashton51 where he described some experts as "paid agents. "Almost 100 years later Lord Woolf joined the list of critics of expert witness’s in his Access to Civil Justice report in which he quipped: -51{1873} 17 LR Eq 358 at 374“Expert witnesses used to be genuinely independent experts. Men of outstanding eminence in their field. Today they are in practice hired guns. There is a new breed of litigation hangers-on, whose main expertise is to craft reports which will conceal anything that might be to the disadvantage of their clients."5252Lord Woolf MR, Access to Justice, Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales, HMSO, London, 1995, p. 183.

37. The fundamental characteristic of expert evidence is that it is opinion evidence. Generally speaking, lay witnesses may give only one form of evidence, namely evidence of fact. To be practically of assistance to a court, however, expert evidence must also provide as much detail as is necessary to allow the court to determine whether the expert’s opinions are well founded.

38. While the test for admissibility of expert evidence differs from jurisdiction to jurisdiction, judges in all jurisdictions face the common responsibility of weighing expert evidence and determining its probative value.53 This is no easy task. Expert opinions are admissible to furnish courts with information which is likely to be outside the courts' experience and knowledge. The evidence of experts has proliferated in modern litigation and is often determinative of one or more central issues in a case.5453Evan Bell, Judicial Assessment of Expert Evidence, Judicial Studies Institute Journal, 2010 Page 5554State v. Pearson and Others (1961) 260 Minn. 477.

39. As I stated in the above cited case, expert testimony, like all other evidence, must be given only appropriate weight. It must be as influential in the overall decision-making process as it deserves; no more, no less. To our mind, the weight to be given to expert evidence will derive from how that evidence is assessed in the context of all other evidence. Expert evidence is most obviously needed when the evaluation of the issues requires specialized, technical or scientific knowledge only an expert in the field is likely to possess. While expert evidence is important evidence, it is nevertheless merely part of the evidence which a court has to take into account.55 Four consequences flow from this.5655Huntley (also known as Hopkins) (a protected party by his litigation friend, McClure) v. Simmons [2010] E.W.C.A. Civ 54. 56Stephen Kinini Wang'ondu v The Ark Limited [2016] eKLR

40. Firstly, expert evidence does not “trump all other evidence.”57 It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then to be rigidly judged with a mathematical precision.5857Ibid58Ibid

41. Secondly, a judge must not consider expert evidence in a vacuum. It should not therefore be “artificially separated” from the rest of the evidence.59 To do so is a structural failing.60 A court’s findings will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence.59Ndolo vs Ndolo, Nairobi Civil Appeal No. 128 of 1995 {1996}eKLR, Kimatu Mbuvi T/A Kimatu Mbuvi & Bros. vs Augustine Munyao Kioko {2006}eKLR60Huntley (also known as Hopkins) (a protected party by his litigation friend, McClure) vs. Simmons [2010] E.W.C.A. Civ 54.

42. Thirdly, where there is conflicting expert opinion, a judge should test it against the background of all the other evidence in the case which they accept in order to decide which expert evidence is cogent and give reasons why the court prefers the evidence of one expert as opposed to the other. Fourthly, a judge should consider all the evidence in the case, including that of the experts, before making any findings of fact.6161Jakto Transport Ltd. v. Derek Hall [2005] E.W.C.A Civ. 1327.

43. A further criterion for assessing an expert’s evidence focuses on the quality of the expert’s reasoning. A court should examine each expert’s testimony in terms of its rationality and internal consistency in relation to all the evidence presented. InRoutestone Ltd v Minories Finance Ltd andanother62 Jacob J observed that what really mattered in most cases was the reasons given for an expert’s opinion, noting that a well-constructed expert report containing opinion evidence sets out both the opinion and the reasons for it. The judge pithily commented “[i]f the reasons stand up the opinion does, if not, not.” A court should not therefore allow an expert merely to present their conclusion without also presenting the analytical process by which they reached that conclusion.62Routestone Ltd. v. Minories Finance Ltd. and Another {1997} BCC 180, [1997] 1 EGLR 123

44. In the above cited case, I stated that where there is a conflict between experts on a fundamental point, it is the court’s task to justify its preference for one over the other by an analysis of the underlying material and of their reasoning.63 It is correct to state that a court may find that an expert’s opinion is based on illogical or even irrational reasoning and reject it.64 A judge may give little weight to an expert’s testimony where he finds the expert’s reasoning speculative65 or manifestly illogical.66 Where a court finds that the evidence of an expert witness is so internally contradictory as to be unreliable, the court may reject that evidence and make its decision on the remainder of the evidence. The expert’s process of reasoning must therefore be clearly identified so as to enable a court to choose which of competing hypotheses is the more probable. An expert gives an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based.6763Shah & Another vs Shah & Others {2003} 1 EA 29064Drake v. Thos Agnew & Sons Ltd. [2002] E.W.H.C. 294. 65Gorelik vs. Holder 339 Fed. App 70 (2nd Cir 2009)66Golville vs Verries Pechet et du Cauval Sciete Anonyme ( court of Appeal (Civil Division), unreported, 27 October 1989).67Makita (Australia) Pty. Ltd. v. Sprowles, {2001} N.S.W.C.A. 305

45. As stated earlier, the evidence of DW2 is basically a critique of the P3 form and the PRC form. He never saw the patient or interview the authors of the two documents, or visit the hospital to verify the history of the patient and date and nature of the examination done. His critique is premised on his views after reading the documents. Its not backed by any research. He claims a “proper examination was not done” because some instruments were not used. He does not tell us why a broken hymen cannot be seen with a naked eye. He did not tell the court which is the instrument which his used to detect a broken hymen or what he describes as a proper a proper examination.

46. As stated above, expert evidence can be rejected if it is based on illogical or even irrational reasoning. To my mind, a perforated hymen does not require a special instrument to see, just like a bruise at the opening of the vagina or vagina walls. DW2’ testimony and reasoning is speculative or manifestly illogical. His testimony is internally contradictory as and unreliable. The source of his ill-founded opinion is by reading the documents. He never saw the patient or undertook any interviews or review the patient. I find it hard to identify his process of reasoning to enable me to choose which of competing hypotheses is the more probable.

47. DW2’s evidence collapses not on one but on several fronts. One, as he admitted, he did not himself examine the victim, yet he purports to draw inferences and conclusions drawn from his purported critique of the P3 form and the PRC form. Two, he purports to claim that a broken hymen cannot be detected without a proper examination. He does not stell us what constitutes a proper examination and why he thinks the same was not done properly. Three, there is no requirement that the P3 form or PRC should contain detailed analysis of the nature of examination done. On the contrary, the findings or comments as form suggests are sufficient. Four, he claims some instruments are usually used while undertaking the examination. Assuming that he is correct, there is no requirement in the P3 or PRC forms that the instrument used be stated. Just like where a patient undergoes a surgery, there is no requirement that the medical report if prepared discloses the instruments used. Five, he claims that the DNAwas not indicated in the PRC form. Such a claim coming from a medical doctor is worrying. Before the medical officer was a victim of sexual assault. The evidence before the court was geared to proving the offence, not paternity. The elements of the offence, as discussed later are well settled. DNA is not one of them. Six, he also claimed that it was not possible to prove penetration. This was the greatest misdirection on the part of this expert witness. He does not seem to understand the meaning of penetration as defined in the Sexual Offences Act. I will allude to the definition shortly.

48. Flowing from the above, it is manifestly clear that DW2’s opinion is based on illogical or even irrational reasoning and it stands to be rejected. His evidence deserves little weight (if at all) because his reasoning extremely speculative and or manifestly illogical. In fact, his evidence is so internally contradictory and unreliable, that it would have been a gross misdirection had the lower court relied on it. He added no value at all to the defence case. If anything, he weakened the defence. His process of reasoning, coming as it does from an expert is surprisingly shallow and it cannot dislodge the evidence tendered by the clinical officer. An expert gives an opinion based on facts and his critique ought to have been premised on established facts but not by sitting somewhere and purporting to discount documents prepared by medical personnel who had the benefit of the history and physical examination of the patient. His opinion to say the least is based on assumptions and it falls to be rejected.

49. The other argument propounded by the appellant’s counsel is that the P3 form in the record of appeal is different from the P3 form submitted in the lower court because the P3 from before this court has some alterations in that it has the words “perforated hymen” which are initialled and a date indicated as opposed to the P3 form which was produced in the lower court which did not have the said words. This argument collapses not on one but several fronts. First, I have looked at the lower courts file. The copy of the P3 form in the record of appeal is a replica of the original in the lower court’s file. This extinguishes the argument that what in in the appeal file was introduced later. Second, such a cavalier argument is only aimed at casting aspirations on the integrity of lower file. Third, a reading of the clinical officer’s evidence, the cross-examination and the answers flowing therefrom leave no doubt that the P3 form in the record of appeal is a duplicate of the original because the questions and answers clearly reveal the document referred to.

50. The appellant’s counsel argued that there are inconsistencies and contradictions in the PRC form and the P3 form in that that the P3 form indicated that the hymen was normal; that the PRC did not have the complainant’s name; that the P3 form in the appeal file has alterations and that the date of the offence is not shown in the P3 form. It is also argued that the evidence tendered is full of contradictions and inconsistencies.

51. The question here as I see it is whether the prosecution evidence is marred by contradictions and inconsistencies. The court's duty is to determine whether there were contradictions and inconsistencies in the prosecution evidence to the extent that a reasonable person would be left in doubt as to whether the charges were proved, or whether the contradictions (if any), are so material that the trial magistrate ought to have rejected the evidence. As the Uganda Court of Appeal held in Twehangane Alfred v Uganda,68 stated, it is not every contradiction that warrants rejection of evidence. It subtly stated: -68Crim. App. No 139 of 2001, [2003] UGCA, 6. “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’s case.”

52. It is settled law that inconsistencies unless satisfactorily explained would usually but not necessarily result in the evidence of a witness being rejected.69The question to be addressed is whether the contradictions mentioned are grave and point to deliberate untruthfulness or whether they affect the substance of the charge. The Court of Appeal of Nigeria defined contradictions in David Ojeabuo vFederal Republic of Nigeria70 thus:-69See Uganda vs Rutaro {1976} HCB; Uganda vs George W. Yiga {1979} HCB 21770{2014} LPELR-22555(CA), Adamu JA; Ngolika JA; Orji-Abadua JA; & Abiru JA.“Now, contradiction means lack of agreement between two related facts. Evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated and not where there are mere discrepancies in details between them. Two pieces of evidence contradict one another when they are inconsistent on material facts while a discrepancy occurs where a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains."

53. Contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. It must deal with the real substance of the case. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial.71 It is not every trifling inconsistency in the evidence of the prosecution witness that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court and therefore necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit there from. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial.71See Osetola vs State {2012} 17 NWLR (Pt1329) 251.

54. The correct approach is to read the evidence tendered holistically. It is only when inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court that they can necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit there from.7272See Theophilus vs State {1996} 1 nwlr (Pt.423) 139.

55. Applying the tests discussed above I find that there are no contradictions at all as claimed. The word “normal” as used cannot be narrowly construed to mean that a broken to mean that a broken hymen renders genitals abnormal. It was also argued that the patient’s name does not appear in thePRC form. To my mind, the patient’s number suffices. In any event, what the appellant is referring to as contradictions and inconsistencies are not substantial nor do they relate to the substance of the case to the extent they can affect the conviction. Accordingly, the argument that the evidence was tainted by inconsistencies and contradictions fails. What the appellant should worry about is whether the elements of the offence were proved because all the evidence should be considered holistically.

56. I now turn to the issue whether the elements of the offence were proved. One of the key elements of the offence is penetration which is defined at section 2 of the Sexual Offences Act as follows: - “penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person.

57. The appellant’s counsel deployed a lot of energy arguing that there was no evidence of penile penetration, that the exact date of the offence was not proved, that the P3 form states that her genitals were normal. From the above definition, partial insertion of a person’s genital organs is enough. The complainant gave a clear account of when the appellant began sexually assaulting her and when he managed to penetrate when she was in class 8 and they continued having sex until 2018 when she opened up to her mother. Her evidence was collaborated by the P3 form which showed that the hymen was perforated. The argument that the PRC form did not bear her name is immaterial. As stated above, the fact that it bore the patients number suffices.

58. It was argued that the trial magistrate misconstrued the provisions of section 124 of the Evidence Act. According to the appellants counsel, the proviso to the said section only applies where there is no other evidence.

59. Section 124 of the Evidence Act73section provides as follows:-73Cr. Appeal No.104 Of 1999, {2001} UGCA 6 (22 March 2001).“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, 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."

60. The above proviso is clear. The evidence of a victim if she is the only witness is admissible, but the court is required to record reasons in the judgement that it is satisfied that the witness is telling the truth. However, the complainant’s evidence was not the only evidence. It was sufficiently corroborated by the rest of the evidence summarized earlier.

61. To me, the question is whether the witness was trustworthy and whether the truth has been told. That fact however does not require the existence of implicatory corroboration. Indeed, in that event she would not be single witness. What was required was that her testimony should be clear and satisfactory in all material respects. The trial court unanimously found that her evidence passed the test. I would add that, while there is always need for caution in such cases, the ultimate requirement is proof beyond reasonable doubt; and courts must guard against their reasoning tending to become stifled by formalism. In other words, the exercise of caution must not be allowed to displace the exercise of common sense.

62. There is no problem with identity of the perpetrator in this matter in the sense that the complainant has implicated someone she knows very well, who is her step-father. The issue here is that the complainant gave an account of what happened to her. The trial court found the complainant to be credible and reliable witness. The court also rejected the appellant’s evidence; it found his version not to be reasonably possibly true. An accused may be convicted of any offence on the single evidence of any competent witness. If the court is satisfied beyond reasonable doubt that such evidence is true. The court is satisfied that the evidence of the complainants is true and that the state has proved its case to the required standard.

63. The court is entitled to convict on the evidence of a single witness if it is satisfied beyond reasonable doubt that such evidence is true. The court may be satisfied that the witness is speaking the truth notwithstanding that in some respects he is an unsatisfactory witness.I think I am stating the obvious in saying that, in evaluating the evidence of a single witness, a final evaluation can rarely, if ever, be made without considering whether such evidence is consistent with the probabilities.

64. There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness...The trial judge will weigh his evidence, will consider its merits and demerits and, having done so will decide whether it is trustworthy and whether despite the fact that there are shortcomings or defects or contradictions in his testimony, he is satisfied that the truth has been told. The cautionary rule may be a guide to a right decision but it does not mean 'that the appeal must succeed if any criticism, however slender, of the witnesses' evidence were well founded... It has been said more than once that the exercise of caution must not be allowed to displace the exercise of common sense.

65. In any event, the following corroborating evidence is evident as borne by the recorded evidence. The fact that the complainant was sexually defiled since she was in class 3 remains unchallenged. The P3 form was clear that the hymen was perforated. The perforated hymen is consistent with penile penetration. Lastly, the P3 form and the PRCform and the clinical officers evidence corroborate her evidence.

66. In any event, the prosecution evidence must be weighed against the appellant's defence. The question is whether the appellant rebutted the allegations against him. The defence must be weighed against the evidence offered by the prosecution. A trial court has a duty to weigh the evidence adduced in court by all the parties in totality and make a finding on the culpability or otherwise of the accused. This is the basic calling of every court without exception.74 The question that follows is whether the explanation given by the appellant was reasonable or whether it rebutted the evidence adduced by the prosecution. It is settled law that the defence of alibi raised by an accused person is to be proved on a balance of probability and that for it to be rejected it must be incredible and that the defence of alibi must be weighed against the evidence offered by the prosecution.7574John Matiko & Another vs Republic, Criminal Appeal No. 218 of 2012. 75See the Supreme Court of Nigeria in the case of Ozaki and another vs The State Case No. 130 of 1988.

67. The correct approach is to consider the alibi in light of the totality of the evidence in the case and the courts impression of the witnesses. It is acceptable in totality in evaluating the evidence to consider the inherent probabilities. The proper approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and having done so, to decide whether the balance weigh so heavily in favour of the state as to exclude any reasonable doubt about the accused's guilt.7676See the South African case ofRicky Ganda vs The State {2012}ZAFSHC 59, Free State High Court, Bloemfontein.

68. The evidence must be considered in its totality. In order to convict there must be no reasonable doubt that the evidence implicating the appellant is true. I have re-analysed the entire evidence offered by the defence and weighed it against the prosecution evidence. The defence evidence did not rebut the prosecution evidence or cast reasonable doubts. The alibi offered by the appellant is in my view improbable and does not cast reasonable doubts on the prosecution case.

69. The defence did not cast any reasonable doubts on the defence case. Reasonable doubt is not mere possible doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.7777Duhaime, Lloyd, Legal Definition of Balance of Probabilities, Duhaime’s Criminal Law Dictionary

70. It is true that the accused enters the proceedings presumed to be innocent. That presumption of innocence remains throughout the case until the state has on evidence put before the court satisfied the court beyond a reasonable doubt that the accused is guilty. The term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.7878See the 1997, the Supreme Court case ofCananda in R vs Lifchus {1997}3 SCR 320.

71. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if the court believes the accused is guilty or likely guilty, that is not sufficient. In those circumstances, the court must give the benefit of the doubt to the accused and acquit because the State has failed to satisfy the court of the guilty of the accused beyond a reasonable doubt. On the other hand, the court must remember that it is virtually impossible to prove anything to an absolute certainty and the State is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, the court is sure that the accused committed the offence, it should convict since this demonstrates that the court is satisfied of his guilty beyond reasonable doubt.7979Ibid.

72. The third element is the age of the complainant. Her birth certificate shows she was born in 2006. This element was proved.

73. On sentence, section 8 (3) of the Sexual Offences Act80 provides that "(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. " The sexual assault is said to have begun when the complainant was in class 3, and it continued up to the time she was in class 8, then aged 13 years, when the appellant was charged. The minimum sentence provided by the law is 20 years. It follows that there is no way in law the magistrate could have imposed a lesser sentence nor am I able to interfere with the sentence. It follows that this appeal on both conviction and sentence fails and the same is hereby dismissed.80Supra.

Right of appeal explained.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 7TH DAY OF JUNE 2022JOHN M. MATIVOJUDGEMiss Anyumba for the RespondentMr. Okere for the appellantAppellant…. present