[2022] KEHC 13779 (KLR)

Alibiri v Republic (Criminal Appeal 51 of 2020) [2022] KEHC 13779 (KLR) (Crim) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13779 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal 51 of 2020

JM Bwonwong'a, J

October 6, 2022

Between

Suleiman Mbai Alibiri

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence of life imprisonment of Hon. S. Jalang’o, SRM, delivered on 13th October 2022 in Makadara Chief Magistrate’s Court, Criminal Case No. 878 of 2014 Republic vs Suleiman Mbai Alibiri)

Judgment

1. The appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act No 3 of 2006. The particulars of the offence are that on February 13, 2014 at [particulars withheld] slums in Embakasi division within Nairobi County, unlawfully and intentionally committed an act which caused penetration of his male genitalia organ into the female genital organ of MAO a child aged six years.

2. In the alternative, he was charged with the offence of indecent act with a child contrary to section 11 (1) of the Sexual Offences Act, No 3 of 2006.

3. The appellant pleaded not guilty and was tried for the offence charged. The trial court convicted him on the main charge. He was sentenced to life imprisonment.

4. Being dissatisfied with the conviction and sentence, he filed five grounds of appeal in his petition of appeal and three amended grounds which were filed together with his written submissions.

5. The main grounds raised are that the evidence relied upon by the magistrate court to convict the him was not sufficient to warrant a conviction, the prosecution case was not proved beyond reasonable doubt, the trial court erred in law by failing to find that the medical evidence was unsatisfactory and the DNA evidence admitted was highly suspicious and was unlawfully obtained creating reasonable doubt in the case, the appellant’s defence was not considered as required by section 169 (1) of theCriminal Procedure Code (cap 75), laws of Kenya, and the trial was procedurally unfair as the appellant’s rights under article 50 of the Constitution of the Kenya were violated.

6. As this is the appellant's first appeal, the role of this appellate court in the first instance is well settled. It was held in the case of Okeno vs R(1972) EA 32 and further in the Court of Appeal case of Mark Oiruri Mose v R (2013) e-KLR that this court is duty bound to re-assess the entire evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusions but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.

7. MAO (Pw 1), who was the complainant minor testified that she was born on June 3, 2007 and was in class three at [Particulars Withheld] primary school. She also testified that on February 13, 2014, she was with her younger brother at a nearby ‘kinyozi’/barbershop as they waited for their mother, who was at the place selling chips. The appellant gave his brother some maize and took her to a house behind thekinyozi. Inside the house, the appellant removed her clothes and her panty. He also removed his clothes and inserted his penis into her vagina. That it was during this moment that her mother called her and she responded, put her clothes on and went to see her. She testified that she reported the incident to her mother who confronted the appellant. She further testified that she was taken to two hospitals for medical attention, where she was treated. The Pw 1 stated that she did not know the appellant prior to the incident.

8. EA (Pw2) testified that she is the mother of the complainant. That on February 13, 2014 while she was buying chips in [Particulars Withheld], her two children were playing nearby. That a few minutes later, her son came back eating a boiled maize. He informed her that uncle had given it to him. When she went to inquire at the kinyozi, she saw the complainant coming from a room next to the kinyozi. Upon inquiry, the complainant told her that the appellant had defiled her. The complainant’s panties also had sperms.

9. Pw 2 also testified that she called other women who were nearby who examined the complainant. That she questioned the appellant on the incident but he denied defiling the complainant. She testified that she reported the matter to the police and took the complainant to hospital in Mathare where she was examined and treated. The following day, she was taken to Milimani Hospital for further treatment. She was also issued with a P3 form.

10. Emmy Kosgei (Pw 3), a clinical officer at MSF clinic in Mathare testified that the complainant was examined at their facility on February 13, 2014 by her colleague, Purity Kajuju. On genital examination she noted bruises on the vulva walls and the hymen was intact. The complainant was treated with antibiotics, post-exposure medicines, and emergency pills. The medical report was produced in court as exhibit 5.

11. No 41884 PCMichael Ndivo (Pw 4), who was attached to Embakasi police station at Villa police post testified that he is the current investigating officer, the previous one having passed on. He further testified that the complainant reported that the appellant had defiled her in a house near the kinyozi. That the complainant’s mother together with members of the public arrested the appellant. He produced the P3 form, exhibit memo form, the report from the government analyst and the complainant’s inner wear.

12. The appellant was found to have a case to answer and was put on his defence. He elected to give sworn testimony. He testified that he stays in Embakasi and he is a businessman. On February 2014, while he was at a barbershop, a group of people came and claimed that he had defiled the complainant. He also testified that he continued his work and the complainant’s mother came claiming that he had defiled her daughter. An argument ensued and the mob attacked him. He was later taken to the police station and later charged in court. He denied that he was with any children at the barbershop.

13. In a summarized form in grounds 1 and 2, the appellant claimed that the evidence relied upon by the trial court to convict him was not sufficient to warrant a conviction and that the prosecution case was not proved beyond reasonable doubt. In his submissions, the appellant stated that the elements of the offence of defilement were not proved to the required standard. He argued that the trial court treated the issue of identification of the perpetrator in a casual manner. The appellant was only identified by Pw 1 and Pw 2, which was not sufficient to warrant a conviction. Further, in her testimony Pw 1 testified that she had been defiled by ‘Uncle Shaffie’ and that the appellant was not known to her prior to the incident. He argues that he is not the said uncle Shaffie as she did not know him. He adds that the prosecution did not produce any evidence to link him to the said individual.

14. It is not in dispute that the complainant was aged 6 years at the time of the incident when she was defiled. This is because from the P3 and PRCforms produced by Dr Emmy Kosgei, she had bruises in her vulva walls and she was put on treatment for STI. Pw 1 and Pw 2 positively identified the appellant as the perpetrator. The DNAprofile generated from the semen sample that was found on the complainant’s underpants matched the appellant’s DNA profile. Further, Pw 2 knew the appellant and was positively recognized.

15. As to the age of the victim, her birth certificate was produced showing that she was born on June 29, 2007. This confirms that she was 6 years as at February 13, 2014, when the offence was committed. The age of the complainant and the fact that she was defiled was proved by the prosecution evidence. I find that grounds 1 and 2 are without merit and I hereby dismissed them.

16. In ground 3 the appellant claimed that the trial court erred in law by failing to observe that the medical evidence was unsatisfactory and the DNA evidence admitted was highly suspicious and unlawfully obtained creating reasonable doubts in the case. He argued that the police should have taken him at the earliest possible time to collect the DNA samples and the same was done as an afterthought. He asserted that the failure to follow the procedure envisaged under section 122A and 122C of the Penal Code (cap 63) Laws of Kenya rendered the entireDNA report inadmissible. The appellant submitted that the trial court relied on circumstantial evidence of DNA to corroborate the highly contradictory medical evidence and the doubtful account of the prosecution witnesses. He claimed that the medical evidence produced and admitted by Pw 3 was contrary to the provisions of the law.

17. Section 36(1) of the Sexual Offences Act, No 3 of 2006 provides:Notwithstanding the provisions of section 26 of this act or any other law, where a person is charged with committing an offence under this act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNAtest, in order to gather evidence and to ascertain whether or not the accused person committed an offence.

18. In Robert Mutungi Mumbi Vs RepublicCriminal Appeal No 52 of 2014, the Court of Appeal in respect of section 36 (1) stated as follows:“Clearly that provision is not couched in mandatory terms. Decisions of this court abound which affirm the principle that medical evidence onDNA evidence is not the only evidence by which commission of a sexual offence may be proved.’’

19. In George Kioji Versus Republic Criminal Appeal No 270 of 2012, the High Court sitting in Nyeri expressed itself thus on proof of the commission of a sexual offence:“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 be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond any reasonable doubt that the defilement was perpetrated by the accused person. Indeed, under the proviso to section 124 of the Evidence Act Cap 80 laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone if the court believes the victim and records the season for that believe,”

20. I am guided by the above principles of law. The court has only to determine the ingredients of the offence and whether the evidence of the witnesses was credible. The appellant was positively identified by the complainant and the same was corroborated by DNA evidence. Pw 2 also corroborated the identification evidence.

21. Further, the trial court exercised its discretion to direct the appellant to give his sample forDNA analysis. The trial court carefully analysed the medical reports and the DNAevidence and was satisfied that taken together with the rest of the prosecution case, it was consistent and coherent that the appellant committed the sexual act.

22. The appellant also claimed that the court allowed the prosecution to produce vital documents contrary to the provisions of section 77 of the Evidence Act (cap 80) laws of Kenya. He argued that the government analyst should have been called as a witness to testify.

23. Section 77 of the Evidence Act provides thus:“77 (1)In criminal proceedings any document purporting to be a report under the hand of a Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence. 1. The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it.

2. When any report is so used the court may, if it thinks fit, summon the analyst, ballistics expert, document examiner, medical practitioner, or geologist, as the case may be, and examine him as to the subject matter thereof.”

24. During the hearing of the case, the appellant had an opportunity to request the makers of the documents in issue to appear in person to testify. In this case, the court was satisfied the manner in which the reports were produced upon examination. This ground by the appellant therefore fails and is dismissed for lacking in merit.

25. In ground 4 the appellant claimed that his defence was not considered as required by the provisions of section 169 (1) of the Criminal Procedure Code (cap 75) laws of Kenya. From the record, the appellant gave evidence under oath denying his involvement in the sexual assault on the minor. In reaching a verdict, the trial court noted that the accused person’s line of defence suggested that the evidence against him was fabricated. The court made a finding that the defence put forward was a sham. This clearly indicates that the trial magistrate indeed considered the appellant’s evidence but found it unbelievable and dismissed it. The contention that his defence was never considered is therefore dismissed for lacking in merit.

26. In ground 5, the appellant claimed that and the trial was procedurally unfair as his rights under article 50 of the Constitution of Kenya were curtailed. He submitted that the trial was marred by procedural unfairness due to lack of disclosure of evidence by the prosecution and that the trial court did not inform him of his right to legal representation despite the serious charges as enshrined in article 50 (2) (g) of the Constitution of Kenya. He argued that he was unlawfully remanded for a period of 2 years and 2 months awaiting the provision of witness statements which were in the custody of the prosecution. That when the same was supplied, the appellant did not have enough time to analyse them and he was consequently prejudiced.

27. From the record, all statements were supplied by the prosecution before the trial. In other instances when the same was not supplied, the court allowed for an adjournment to give the appellant time to prepare himself. This ground therefore fails and is hereby dismissed for lacking in merit.

28. The appellant’s appeal fails and is dismissed for lacking in merit.

JUDGEMENT SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 6TH OF OCTOBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistantThe appellant in person.Ms Joy for the Respondent