[2017] KEHC 3278 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL 59 OF 2015

ALBERT KIMATHI MUGO………………………APPELLANT

VERSUS

REPUBLIC………………..................................RESPONDENT

JUDGMENT

The Appellant Albert KIMATHI MUGO was on 26/5/2015 convicted by the senior Principal Magistrate’s Court, Embu for the offence of Defilement contrary to Section 8(l) as read with Section 8(2) of the sexual offences Act No 3 of 2006.

The Offence was alleged to have been committed on the 25/12/2013 within Embu Township and upon conviction he was sentenced to 20 years imprisonment. Aggrieved by the conviction and sentence, he has appealed to this court and has listed ll grounds of Appeal in his amended petition of Appeal.

The Appeal proceeded by way of written submissions. The Appellant consolidated all the grounds of Appeal and argued them generally and I propose to consider them together as well.

It was submitted that the prosecution did not prove the case beyond reasonable doubt and that there are many gaps that were not filled by the prosecution.

That the only witness who implicated the Appellant was PW1 and there are doubts as to whether she was defiled by the Appellant considering the delay in reporting the matter to her parents. That there would have been intervening factors for the 6 months it took the complainant to report the case and therefore the police failed in their duty to link the Appellant to the offence herein. The cases of DWN Versus Republic (2013) eKLR, that of Ismail Ibrahim Kufe Versus Republic (2014) eKLR, Elias Kiamati Njeru Versus DPP (2015) eKLR PIUS Mutisya Kiting’o Versus Republic (2015) eKLR AND PKN Versus Republic (2012) eKLR were relied on.

It was submitted that the basis of convicting the Appellant was the pregnancy and not the evidence of PW1, which was erroneous on the part of the learned Magistrate. It was also argued that the decision did not meet the threshold under Section 169 (l) of the Criminal Procedure Code in that the issues for determination were not set out and that there were no reasons for the decision. The case of Jackson Maingi Nzioka Versus Republic (2013) eKLR was cited to support this contention wherein the court of Appeal observed that,

“Failure to comply with Section 169 (l) and (2) of the CPC, would vitiate the trial.”

The Appellant further submitted that the learned Magistrate did not state how he linked the Appellant to the pregnancy. That there was need to establish the person responsible for the same through the evidence, which was not done in this case.

With regard to the medical evidence adduced, the Appellant contended that it was insufficient and unsatisfactory in that they were merely outpatient records and no P3 was produced.

The Appellant submitted that the trial court shifted the burden of prove to him which is contrary to the Law as the burden of prove always remains with the prosecution. That it was necessary for the police to carry out a DNA test to connect the Appellant with the offence and not to shift the burden to him to prove that the pregnancy was not his. He relied on the case of Ismail Ibrahim Kofa Versus Republic (2014) eKLRand Pius Mutisya Kitong’o Versus Republic (Supra) among others.

On the part of the Respondent, it was submitted that the Critical elements of the offence of Defilement had been proven and that there were no inconsistencies in the evidence adduced by the prosecution witnesses. That the evidence of the complainant (PW1) was clear on how she was defiled by the Appellant when she went to his house to return some CDs that she had borrowed from him. It was while in the Appellant’s house that he unzipped his trouser and inserted his penis into her vagina causing her pain. That, this means there was penetration and the learned Magistrate did not rely on pregnancy as proof of defilement as alleged by the Appellant.

It was also submitted that it was PW2’s evidence that she did not have sexual intercourse with somebody else. That the medical evidence by way of discharge summary confirmed that PW1 was treated for miscarriage. Further, that a DNA test was not necessary as it is not mandatory under the Law. The Respondent relied on the case of Hadison Ali Mwachongo Versus Republic (2016) eKlr at the court of Appeal Mombasa which quoted the case of Robert Mutungi Muumbi Versus Republic Criminal Appeal No 52 of 2014 and Williamson Sowa Mbwanga Versus Republic Criminal Appeal No 109/2014where the court observed that the provisions of Section 36(l) is not couched in mandatory terms and that medical or DNA evidence is not the only evidence by which commission of a sexual offence may be proved.

The Respondent contended that under Section 124 of the Evidence Act, the trial Court can convict an accused person in an offence under the Sexual Offences Act on the evidence of the victim alone, if it believes the victim to be truthful. That it was on the strength of PW1’s testimony and demeanor that the trial court convicted the Appellant and that the complainant positively identified the Appellant as the person who defiled her.

This being the first Appeal, the court is under duty to re-evaluate the evidence on record but has to consider that it did not have the benefit of seeing the witnesses testify. See the case of Otieno Versus Republic.

PW1, the complainant, told the court that on the 13th – 25th December 2013 she was at home with her parents when the Appellant asked for his CDs that they had exchanged. She went to take them back and found the Appellant alone in the house. He closed the door, placed her on the sofa, removed her clothes, unzipped, removed his penis and put it into her vagina after which she went home but did not tell anyone.

On 5/5/2014, her mother asked her why she did not get her monthly periods and it was then that she was tested and found to be pregnant. She told her father that the Appellant was responsible for the pregnancy and he was arrested.

PW2 is the clinician who treated PW1. She was taken to the hospital after she complained of pain on the lower abdomen. He did some tests and he confirmed the pregnancy. PW1 had discharge from the vagina and it was dilated. The pregnancy could not stand and abortion was not avoidable.

PW3 is the mother to the complainant. It was her evidence that in May, 2014 her daughter, the complainant herein, got sick and she took her to Liberty Hospital. She was referred to the Provincial General Hospital where she was informed that the pregnancy was coming out. She gave the report to the complainant’s father, S M N, who called the Appellant and he admitted having defiled the complainant.

PW4 is the father to the complainant. On 8/5/2017 he was called by PW3 who informed him that the complainant was unwell. He took her to hospital and it was confirmed that she was pregnant. On interrogating her, she told him that she was defiled by the Appellant as she returned a CD to him. He reported the matter to Embu Police station.

PW5 was the medical officer in charge of the health at Embu provincial General Hospital at the material time. He produced a discharge summary for the complainant who was treated there for a complete abortion.

PW6, a police officer who was based at Embu police station. It was her testimony that on 10/5/2014 the complainant went to the police station in the company of her parents to report a case of defilement by a neighbor who is the Appellant. The complainant was pregnant. They were referred home awaiting the birth of the child and a D.N.A but she miscarried thereafter. She recorded the statements of the complainant and her parents.

The court has considered the evidence on record and the submissions by the respective parties.

I will consider the grounds of Appeal together alongside the critical ingredients of the offence of defilement which are; age, Penetration and identify of the assailant.

On the issue of age, a certificate of birth was produced as an exhibit. It shows that the complainant was born on 26th November 1999.

The offence was committed on 25th December 2013 and by then she was 14 years and 1 month. It therefore follows that the complainant was a minor.

On penetration, PW1 alleged that she was defiled by the Appellant in his house when she went to take CDs that they had exchanged. On returning home, she kept it to herself until the 5/5/2014 when she was taken to hospital and the results confirmed that she was pregnant. Later on, she was hospitalized at Embu Provisional General Hospital from 22/5/2014 to 26/5/2014 during which time, she miscarried. A letter marked as exhibit 4 from Embu provisional Hospital confirmed the said admission.

The Appellant has argued that there are many gaps in the prosecution’s case and one of the issues he has raised is that the said defilement was first reported when the complainant was six months pregnant. The Appellant has further argued that for the 6 months, there could have been other intervening factors and that somebody else might have defiled the complainant.

He submitted that this is a case where no P3 form was filled and the prosecution relied on the treatment records showing that the complainant was admitted in hospital during which time, she miscarried. No DNA was carried out to connect the Appellant with the offence he was charged with.

Am alive to the fact that under the sexual offences Act, the court can convict on the evidence of the complainant if the court believes her, and for reasons to be recorded but in this case, due to the time lapse between when the offence was allegedly committed and when it was reported to the police, there was need for independence evidence linking the Appellant to the offence in order to sustain a conviction.

Under the provisions of Section 124 of the Evidence Act, the learned Magistrate was under a duty to record the reasons for believing the complainant which she failed to do and which was misdirection on his part.

This court is perturbed by the behaviour of the complainant after the alleged defilement. She kept the matter to herself for too long raising doubts as to the identity of the person who defiled her. The Appellant was her neighbor and this court cannot comprehend why it took her too long to name him. See the case of Ismail Ibrahim Kofa Versus Republic (2014) eKLR.

The complainant having been the only witness on whose evidence the prosecution relied on, and on whose evidence the court convicted the Appellant, she needed to be a credible witness and should not make an impression that she was not a reliable witness. See the case of D.N.N Versus Republic (2013) eKLR wherein Ongudi J, relied on the court Appeal Case of Kiilu & Ano Versus Republic (2005) KLR 174.

This court takes judicial notice of the fact that the complainant though a minor at the material time, was not a child of tender age and was capable of understanding the importance of reporting the alleged crime to the police. The delay in this case was not explained and it leaves a lot to be desired. It cannot be ruled out that a sexual intercourse did not take place between the complainant and the Appellant or any other man, which resulted in the pregnancy. Also, the conduct of the complainant and her parents puts their credibility in question. The trial Magistrate ought to have addressed the issue of delay in his Judgement. See the case of Elias Kiamati Njeru Versus DPP (2015) eKLR.

The failure by the prosecution to produce a DNA report is significant in this appeal as it would have been the only evidence in the circumstances of this case that would have conclusively linked the Appellant to the alleged defilement or otherwise. In the case of Abraham Kibet Cheruiyot Versus Republic (2014) eKLR the court held;

“The most prudent thing the police should have done was to conduct a D.N.A test so as to ascertain whether the child was indeed sired by the Appellant.

The silence by the police in this line of investigation was not explained giving rise to a big gap in the prosecution’s case that would not be filed by any other evidence. …….And as I had noted earlier in this Judgement, it is only a DNA test that would have cleared any doubts that no other third party except the Appellant was involved sexually with PW1. The omission to do the DNA test certainly rendered a fatal blow to the prosecution’s case…”

Having analyzed the evidence as above, I am of the considered view that the prosecution did not prove its case beyond reasonable doubt and the learned Magistrate erred in convicting the Appellant. The conviction by the trial Magistrate was unsafe in the circumstances. I accordingly quash the same, set aside the sentence and order that the Appellant be forthwith set free unless otherwise lawfully held.

It is so ordered.

Before I conclude, I need to point out that criminal liability has no limitation of time. But when so much time lapses before a case is reported to the police, a lot of evidence is lost or destroyed and the evidence which may finally be tendered may fail to prove a water tight case against the accused and that is what happened in this case.

Dated, Signed and Delivered at Embu this 2nd Day of October, 2017.

…………………………….

L. NJUGUNA

JUDGE

In the Presence of

…………………………. for the Appellant

…………………………. for the Respondent