[2017] KEHC 1616 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NANYUKI

CRIMINAL APPEAL NO. 9 OF 2016

ALI MOHAMED IBRAHIM........................................APPELLANT

VERSUS

REPUBLIC..............................................................RESPONDENT

(Being an appeal from the original conviction and sentence in Nanyuki

ChiefMagistrate’s Court Criminal Case No. 668 of 2016

by Hon. W. J. GICHIMUPrincipal Magistrate

on 11th December 2015)

JUDGMENT

1. ALI MOHAMED IBRAHIM (the appellant) was convicted before Nanyuki Chief Magistrate’s court of the offence of defilement contrary to section 8(2) of the Sexual Offences Act. He was sentenced to serve life imprisonment. He has appealed against his conviction and sentence.

2. As the first appellant court the appellant is entitled to have this court’s own consideration and view of the trial court’s evidence and is entitled to have this court reach its own decision. This court also has a duty to rehear the case and reconsider the material before the trial court: See KARIUKI KARANJA –V- REPUBLIC [1986] KLR 190.

3. The appellant was convicted of defilement of an 8 year old girl S.M.

4. The prosecution’s evidence, which was confirmed by the appellant, was that the family of the appellant and of S.M. were neighbours who knew each other very well. S.M.’s family used to get milk from the appellant’s home. The fact that they knew each other very well was confirmed by S.M., the 8 year old girl, when she said she was defiled by the appellant whom they used to refer to as uncle A.

5. The further prosecution’s evidence was that on 6th July 2015 S.M. in the company of her two younger siblings were on their way to school. On the way they met with uncle A. Uncle Ali told S.M. that her mother wanted her to return home. Her other siblings were told by the appellant to proceed and go to school.

6. The appellant held S.M. by her hand and led her to his house. When they reached there the appellant locked the door. He laid S.M. on is bed and lay on top of her after removing her trouser and underwear and his underwear too.

7. S.M. stated that the appellant did ‘tabia mbaya’ (bad manners) to her. At one point the appellant smeared some jelly on his private part and on S.M.’s private part.

8. The appellant after that incident gave S.M. Kshs.500 in coins. With that money the appellant bought S.M. some bread, juice and biscuit. S.M. retained the balance of the money which she said was later stolen at school.

9. Appellant after the incident went to school but the head teacher sent her back home for having arrived later with instructions that she was to be brought to school by one of her parents. Her parents were also telephoned and informed S.M. had been sent away from school.

10. S.M.’s father took S.M. back to school. S.M. said she did not tell her father what the appellant had done to her because the appellant had threatened to kill her if she told anyone.

11. Later in the evening of that day S. M.’s siblings informed their mother (PW 1) that S.M. had given them snacks at school. PW 1 chastised S.M. to get her to reveal where she had gotten the snacks from. It was then that S.M. informed her mother what the appellant had done.

12. S.M. was taken to Nyahururu Sub County hospital on 7th July 2015 and was attend by Doctor Joseph Karimi (PW 4). The doctor examined S.M. whom he found she had bruises/laceration vaginal canal and the hymen was missing which was indicative that S.M. had penetrative vaginal sex. There was mild bleeding noted.

13. It is important to note that the trial court’s hand written proceedings show that the doctor PW 4 worked at Nyahururu Sub County hospital and not Nanyuki Hospital. There was an error in typing that part of the proceedings.

14. The appellant has presented 6 grounds of appeal.

15. The first ground of appeal is that the trial court erred in not noting that S.M. had to be beaten to disclose the defilement and that there were contradictions in the evidence of the prosecution.

16. The Court of Appeal in the case ERICK ONYANGO ONDENG’ V REPUBLIC [2014] eKLR had this to say on contradictions:-

“As noted by the Uganda Court of Appeal in TWEHANGANE ALFRED VS UGANDA Criminal Appeal No. 139 of 2001 [2003] UGCA, 6 it is not every contradiction that warrants rejection of evidence. As the court put it:

“With regard to contradiction in the prosecutions’ case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explains will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradiction unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

17. The Court of Appeal in the Philip Nzaka Watu –v- Republic 2016 eKLR cautioned against picking sentences in order to show inconsistencies. The court is that case referred to a Tanzania decision with approval as follow:-

In ELIA NSAMBA SHAPWATA & ANOTHER V. THE REPUBLIC, CR. APP. NO. 92 of 2007 the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concluded as follows, a view we respectfully adopt:-

“In evaluating discrepancies, contradictions and omissions, it is undesireable for a court to pick out sentences and consider them in isolation from the rest of the statements. The court has to decide whether inconsistencies and contradiction are minor, or whether they go to the root of the matter.”

18. The appellant has indeed in this case picked out sentences and considered them in isolation in attempt to prove inconsistencies. There is otherwise no inconsistencies or discrepancies in the prosecution’s evidence. The prosecution’s evidence was clear and consistent.

19. The second ground of appeal was that the trial court erred in failing to hold that the fact prosecution did not produce the blood stained under wear of S.M. and thereby caused doubt in the prosecution’s case.

20. The trial court found S.M.’s evidence was reliable and was corroborated by the medical evidence and thereby that there was sufficient proof of defilement of S.M. by the appellant.

21. In this court’s view and having reconsidered the trial court’s evidence. I find that the trial did not err in finding prosecution had proved its case. The failure to produce the blood stained underwear did not affect that evidence.

22. The appellant by his third ground of appeal faulted the trial court for failing to find that prosecution failed to call vital witnesses.

23. Section 143 of the Evidence Act grants prosecution discretion on the number of witnesses it should call.

24. The Court of Appeal in the case MWEA FRANCIS V REPUBLIC [2016] eKLR held as follows:-

“Similarly, the appellant’s complaint that vital witnesses were not called to testify is baseless. Section 143 of the Evidence Act is clear on the fact that no specific number of witnesses is necessary to prove a fact. That section provides that:-

“143. No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”

(15) This provision of the law was reiterated by this Court in Collins akoyo Okwemba & 2 others v Republic [2014] eKLR (Criminal Appeal No. 684 of 2010) which rendered itself as follows:-

“The prosecution is under no obligation to call any number of witnesses so long as they bring before the court evidence sufficient to prove their case to required standard.”

25. The prosecution does however have a duty to call material witnesses. This was held in OLORO and DALTANYI vs REGINAM [1956] 23 23 EACA 49 where it was held inter alias that:-

“Prosecution have a duty to call material witnesses. If they fail, the presumption is that if the evidence had been called that evidence would have been unfavourable to prosecution.”

26. Appellant submitted in support of his third ground of appeal that prosecution should have called S.M.’s sibling who saw the appellant lead S.M. away. That the head teacher of S.M. should have testified and similarly that father of S.M. should have testified.

27. The evidence led by the mother of S.M. was that the siblings of S.M. were younger than her. S.M., it will be recalled, was 8 years old. Her siblings were said to be in nursery school.

28. Bearing that in mind it becomes obvious that there would have been no value addition to the prosecution’s case if such young children were called to testify.

29. Similarly there would be no value in receiving testimony of S.M.’s teacher or father.

30. The appellant also faults prosecution for failing to prove the age of S.M.

31. S.M.’s mother in evidence stated that S.M. was 8 years old having been born on 2. 6.2008. The P3 form also indicated that S.M. was 8 years old.

32. The Court in the case RICHARD WAHOME CHEGE –V- REPUBLIC HCCRA NO. 61 of 2014 held that admittance of the evidence of the mother of the victim was sufficient proof of age. That the evidence of the mother of the age of a child was adequate proof of age.

33. Bearing that decision in mind and that the mother of S.M. and the P3 form indicated S.M. was 8 years, the trial court was right to find that S.M. was 8 years old.

34. The complaint in ground number four was that appellant was denied right to cross examine the investigating officer has no basis at all. The record shows that the appellant indeed cross examined that officer.

35. On ground four appellant also complained; that his constitutional right of prolonged detention under Article 49(1)(f) of the constitution was violated.

36. Appellant was arrested on 6th July 2015 and was present before court on 8th July 2015. Article 49(1)(f) requires an arrested person to be brought before a court as soon as reasonably possible but not later than 24 hours.

37. If the appellant indeed was detained in violation of that Article, such a violation, if at all, cannot lead to a finding of not guilty. The appellant can pursue the redress of such violation quite separately to this matter.

38. The appellant in his ground six faulted trial court for failing to consider his defence.

39. By his defence appellant testified of a misunderstanding between him and father of S.M. whereby that father alleged that there was an undesireable association between the appellant and with his wife the mother of S.M. That the appellant thereafter declined to have that mother of S.M. visit his home but that on 6th July 2015 the mother S.M. visited his home and asked for Kshs.2,000 he had promised her because they had a relationship. When he declined he was later alleged to have defiled S.M.

40. It is important to note that the mother of S.M. testified at the trial. The appellant did not put any questions to her of their alleged relationship or that she asked for Kshs.2,000. It follows that the appellant’s defence was an afterthought and could not be relied upon. The trial court rightly rejected that defence.

41. Although the appellant denied the offence I am in agreement with the trial court’s finding. Bearing in mind the prosecution’s evidence there was no doubt that he committed the offence.

42. The trial court set out in its judgment its observation of S.M., the 8 year old girl by stating:-

“In this case, I saw the complainant (S.M.) testify and observed her demeanor. I have no reason whatsoever to doubt her testimony. The complainant although a young child was calm and confident. I must admit that she struck me as a truthful witness. She maintained her calmness and gave clear and consistent evidence even under intense cross examination by the accused person (the appellant)”.

43. In the end I find that the trial court did not err in convicting and sentencing the appellant. The sentence was lawful. I accordingly uphold the conviction and confirm the trial court’s sentence. Appellant’s appeal is dismissed.

DATED and DELIVERED at NANYUKI this 6th day of DECEMBER 2017

MARY KASANGO

JUDGE

CORAM

Before Justice Mary Kasango

Court Assistant: Njue/Mariastella

Appellant: Ali Mohamed Ibrahim .......................

For the State: ........................................................

Language: .............................................................

COURT

Judgment delivered in open court.

MARY KASANGO

JUDGE