[2017] KEHC 3346 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL 62 OF 2015

ALBERT KINYUA NGARI…………………………………………APPELLANT

VERSUS

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

JUDGMENT

The Appellant herein was on 15th July, 2015 convicted and sentenced to serve 15 years in prison for the offence of defilement Contrary to Section 8(l) (4) of the Sexual Offence Act No 3 of 2006.

The particulars of the charge are that on the 13th day of November, 2011 in Mbeere North district within Embu County intentionally caused his penis to penetrate the vagina of N N M, a child aged 16 years.

In count ll, he faced the charge of indecent assault contrary to Section 20 (l) of the Sexual Offences Act No 3 of 2006, the particulars being that:

On the 13th day of November 2011 in Mbeere North District within Embu County being a male person caused his penis to penetrate the vagina of N N a female person who was to his knowledge his cousin.

Being dissatisfied with the conviction and the sentence the Appellant has Appealed to this Honourable court and has listed 7 grounds of Appeal in his further Amended petition of Appeal. The following are the grounds of Appeal:

1. THAT he pleaded not guilty to the charge.

2. THAT the learned trial Magistrate erred in both points of Law and facts when he failed to consider that there was a delay in making this report which leaves great doubts whether the alleged offences was committed by the Appellant. (the report was made after 6 months)

3. THAT the learned trial Magistrate still erred in both matters of Law and facts when he failed to order for a DNA on both the complainant and the Appellant to establish the paternity of the child contrary to Section 36 (l) of the sexual Offences Act.

4. THAT the birth Certificate produced as exhibit before the court differed with the name of the complainant.

5. THAT the trial Magistrate erred in Law and fact in convicting the Appellant yet the complainant’s evidence was not corroborated by the doctor’s as she was not cross examined.

6. THAT the trial Magistrate erred in both matters of Law and facts when he failed to consider that the allegations of the Chief were not supported by either Appellant or the complainant or any independent witness.

7. THAT the learned trial magistrate erred in law and facts when he failed to consider that there existed a grudge between the family of the Appellant and that of the complainant.

8. THAT the learned trial Magistrate erred in both Law and facts when he rejected the Appellant’s defence thus violated Section 169 (l) of the Criminal Procedure Code.

The Appeal proceeded by way of written submissions.

On his part, Counsel for the Appellant submitted that there was a delay in reporting the offence and that there were inconsistences of character exhibited by PW1 and PW2 and the learned Magistrate failed to address the issue to the required standard.

It was further submitted that the delay of six months in making a formal report to the police was inordinate and throws the credibility of prosecution witnesses to doubt. Counsel argued that though Section 124 of the Evidence Act allows the court to rely on uncorroborated evidence of a victim in Sexual Offences, the section can only come to play when the said victim is found to be credible and not guilty of laches as the case herein. That there are still doubts as to whether PW1 was defiled by the Appellant bearing in mind that the said defilement was first reported to her parents when she was already three months pregnant and even after she was informed, PW2 did not take any steps until the Appellant purportedly declined to support PW1.

He argued that there could have been other intervening factors for the six months the complainant took and that somebody else would have been responsible and not necessarily the Appellant. He relied on the case of Elias Kiamati Njeru Versus Director of Public prosecutions (2015) eKLRand submitted that corroboration of the complainant’s evidence was necessary. Counsel maintained that though the court can rely on the evidence of a single witness to convict, this can only be so if the evidence is credible. He cited the case of Ismail Ibrahim Kofa Versus Republic (2014) eKLR in which the complainant took nine months to name the Appellant as the person who defiled her yet they were neighbours. In that case, the Judge observed that the evidence could be wrong about the identity of the Appellant.

It was further submitted that the evidence of PW1 was not water tight as she only linked the Appellant to the pregnancy when he gave her ksh. 1,000 to procure an abortion. He urged the court to find that the case was not proved beyond reasonable doubt and in support of this contention he relied on the case of Kiilu & another Versus Republic (2005). lKLR 174.

It was averred that there was a conflict in the name of the complainant which the learned Magistrate failed to address in his Judgement. That the name in the birth certificate is different from the one used by PW1 when she testified and this meant that the birth certificate could not be relied upon to prove the age of the complainant. The court was told that the age of the complainant was not proved as different ages were quoted in the documents that were produced in court.

The Appellant’s Counsel also submitted that a DNA test was necessary to corroborate evidence of PW1 since by the time the matter was heard, she had already delivered. That in failing to carry out a DNA test, the prosecution shifted the burden of prove to the Appellant to prove that the pregnancy was his. On the importance of medical evidence, the Appellant cited the case of Pius Mutisya Kiting’o Versus Republic (2015) eKLR where the court relied on the court of Appeal decision in Geoffrey Kioji Versus Republic CR Appeal no 270/2010 (Nyeri), that of Abraham Kibet Cheruiyot Versus Republic (2014) eKLR and that of Hamisi Mwagambere Kipasho Versus Republic (2009) eKLR.

The Respondent filed Submissions on the 18/7/2017. The learned state Counsel submitted that the Appellant did not suffer any prejudice on account of difference in age as shown on the charge sheet and as indicated by the complainant when she testified in which the age was stated as 16 and 15 ½ respectively. To support this contention, she relied on the case of JWA Versus Republic (2014) eKLR. She contended that the age of a minor can be proven by other means and not necessarily by a birth certificate. He also relied on the case of Francis Omuroni Versus Uganda, Criminal Appeal No 2 of 2000which was quoted in the case of Uganda Versus Magidu Othieno Criminal Case No 0097/2010 where the court held that apart from medical evidence, age may also be proven by a birth certificate, the victim’s parents or guardian and by observation and common sense…

On the issue of penetration, it was submitted that PW1 was 6 months pregnant when she was examined and she stated that she had not had sexual intercourse with another man and that the pregnancy confirmed that PW1 was defiled. That she identified the Appellant as the person who defiled her.

On the delay in reporting the matter, it was submitted that the complainant could have failed to report on time for fear of shame, embarrassment and ridicule and the Appellant and complainant, being cousins, did not want the matter to escalate to the level that it did.

It was submitted that a DNA is not mandatory and its not the only evidence by which the offence of defilement may be proved. See the case of Hadson Ali Mwachongo Versus Republic (2016) eKLR and that of AML Versus Republic (2014) eKLR where the court held that defilement is not proved by a DNA but by way of evidence.

She also relied on the case of JWA Versus Republic Criminal Appeal No 100/2013where the court of Appeal held that corroboration is not mandatory. She asked the court to dismiss the Appeal.

As this is the first Appeal, I am required to conduct a fresh evaluation of all the evidence and come up with a conclusion as to whether or not to uphold the conviction, but bearing in mind that I never saw or heard witnesses testify. See the case of Okero Versus Republic (1973) E.A. 32.

A brief summary of the prosecution’s case is that, four witnesses were called in evidence. The complainant testified as PW1 and in her evidence, she told the court that on the 12/11/2012 she went to the Appellant’s shop as he was to send her. It took her up to 10. 00 pm when the Appellant closed the shop by which time he had not told her where he wanted to send her. At 10. 00 pm he told her that he wanted to have sex with her and they went to his house and had sex after which the Appellant escorted her to her home. She explained to her mother what had taken place and her mother asked the Appellant why he defiled the complainant (PW1). After two months, she realized that she was pregnant and on informing the Appellant, he gave her Ksh. 1,000 to carry out an abortion but she refused. Thereafter her mother reported the incident to the police. It was her evidence that she did not have sex with any other person thereafter but on cross examination, she stated that the matter was taken to court because the Appellant refused to take care of the child.

The mother to the complainant testified as PW2. She stated that the Appellant went to her home on 8/11/2011 and informed her that he wanted to send her daughter (the complainant) to call for her another girl but since it was at night, she urged him to go the following day. On 9/11/2011, the Appellant went to PW2’s place and left with her daughter but brought her back the same night. After a few months she learnt that her daughter was expectant. She alleged that it was the Appellant who impregnated her. She reported him to the assistant Chief after which the appellant was arrested and charged.

PW3 is the clinical officer who examined the complainant and by then, she was 6 months pregnant. It was his evidence that nothing indicated that she was defiled apart from the fact that she was pregnant and due to the lapse of time he was not able to establish if she was defiled or not.

PW4 a police officer attached to Siakago police station took over investigations of the case from CPL Tietie Kiptisha who was transferred. He produced a copy of the birth certificate as an exhibit and on cross examination he stated that the complainant reported the incident on the 12/11/2011.

I have considered the grounds of appeal, the evidence on record and the submissions. The main issue raised in the Appeal is whether the conviction was based on sufficient and satisfactory evidence.

In determining the appeal before me, I remind myself of the critical ingredients that form the offence of defilement which are:

1. The age of the complainant.

2. Proof of penetration

3. Positive identification of the assailant.

See the case of Charles Wamukuya Karani Versus Republic Criminal Appeal No. 72/2013.

Starting with the first ingredient, the prosecution produced a birth certificate for the complaint. The same clearly shows that she was born on the 26/5/1996. Simple calculation would show that by the time the alleged defilement was committed, she was slightly above 15 years and therefore, she was still a minor.

On this issue of age the Appellant has submitted that the age as stated in the charge sheet is different from the age in the birth certificate. My take on this is that no prejudice was occasioned to the Appellant by that difference and in any event whether it was 16 or 15 ½ years the complainant was still a minor and the discrepancy in the age did not prejudice him as he got a lesser sentence based on the age of 16 years.

On the 2nd ingredient of penetration, PW1 in her evidence stated that it was the Appellant who defiled her and two months later she discovered that she was pregnant. It was her evidence that she did not have sex with any other man in between. However, it is noted that she took time to report that she had been defiled by the Appellant, if at all. The report was made 6 months after the alleged defilement and she was categorical in her evidence that she reported the matter to the police after the Appellant refused to maintain the child.

In this regard, the Appellant has raised two very critical issues being that of delay in reporting and that of DNA. The evidence on record shows that no DNA was carried out to establish if the child born by the complainant was as a result of the defilement committed by the Appellant as alleged by the complainant. On the issue of the DNA which medical evidence, Section 124 of the evidence Act does not make it mandatory as the court can convict on the evidence of the victim. In the case of Geoffrey Kioji Versus Republic NYR Criminal Appeal No 270/2010 the court held;

“Where available medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however, hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict it if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person.”

However, in this case, there was a long delay of 6 months before the case was reported. This court is disturbed by the behavior 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. It is clear from the evidence on record that a long time lapsed before a complaint was made. Infact, the clinical officer who testified as PW3 was very categorical in his evidence that there was nothing to indicate that the complainant had been defiled apart from the fact that she was pregnant.

In view of that evidence by PW3, I form an opinion that it was necessary for a DNA test to be carried out to connect the Appellant to the offence he was charged with. From the evidence on record, the only thing that connects him to the offence is the child that the complainant alleges was his, as a result of the encounter she allegedly had with him. I agree with the submission by the Counsel for the Appellant that 6 months is a long time and it was possible that anything could have happened. In the case of Hamisi Mwaga Mbere Kipashu Versus Republic (2009) eKLR the court observed as follows:

‘I have analyzed the evidence in detail and it shows that a long time elapsed, between the sexual intercourse in which the complainant was involved and the time when a complaint was made,….. even though the complainant had given birth to a baby during the pendency of the trial, the prosecution did not take advantage of the situation to bring crucial evidence in the form of DNA test results….”

Similarly, in the case of Pius Mutisya Kiting’o Versus Republic the court held as follows:

“The failure by the prosecution to produce a paternity report of DNA is significant in this Appeal as it would have been the only evidence in the circumstances that would have conclusively linked the Appellant to the alleged defilement or otherwise.”

I therefore find that the prosecution failed to prove the case beyond reasonable doubt and I accordingly quash the conviction and set aside the sentence. I direct that the Appellant be set at liberty forthwith, unless otherwise lawfully held.

Orders accordingly.

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

.....................

L. NJUGUNA

JUDGE

In the Presence of

…………………………. for the Appellant

………………………..for the Respondent