[2018] KEHC 199 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT KAKAMEGA

HCR APPEAL NO. 119 OF 2015

ALICE NYOTA......................APPELLANT

VERUSUS

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

(from the original conviction and sentence by S.Shitubi , CM, in KakamegaCMC’s S.O Case No. 43 of 2013 dated 11/12/2014).

J U D G M E N T

1. The appellant was convicted of the offence of defilement of a boy contrary to section 8(1) of the Sexual offences Act No. 3 of 2006 and sentenced to serve 20 years imprisonment. She was aggrieved by the conviction and the sentenced and filed this appeal. The grounds of appeal are that the appellant was not conversant with the language of the court, that the trial court did not consider the age of the complainant and that the sentence imposed was excessive.

2. The appeal was opposed by the state.

3. The particulars of the offence against the appellant were that on diverse dates between 6th May ,2013 and 26th June , 2013 at [particulars withheld] within Kakamega central District in Kakamega County she unlawfully and intentionally caused her vagina to be penetrated by the penis of J.M. (herein referred to as the complainant/boy ) a child aged 17 years .

Prosecution Case

4. The case for the prosecution was that in the year 2013 the complainant was a 17 year old standard 8 pupil at [particulars withheld] Primary School. He was staying with his father S O PW2 in Kakamega town.

5. That on the 6th May, 2013, the complainant went to Metameta club in Kakamega town to check on a friend. While there he met the appellant. The appellant asked him to escort her. They went upto the house of the appellant at [particulars withheld] in Kakamega town. On getting there, the complainant prepared supper. They ate. The appellant then started to carress him. They engaged in sexual intercourse. The complainant put on a condom but the appellant later stripped it off. The complainant did not leave the appellant’s house for a month. All the time they used to engage in sexual intercourse. The appellant used to lock him in the house when she went out.

6. In the meantime, the father to the complainant was looking for him. He engaged some boda boda motorcycle operators PW3 and PW4 to assist him to trace the boy. The two managed to trace where the boy was. They informed the father. They went to the house of the appellant. They found the appellant and the boy in the house. The two of them were escorted to Kakamega Police Station. Ag IP Lucy Waithera PW6 issued P3 forms to them and took them to Kakamega County Hospital. Both of them were examined by Dr. Akhonya PW5. Nothing significant was elucidated except that the appellant had a sexually transmitted disease. The doctor completed the P3 forms. The appellant was charged with the offence. She denied the charge. During the hearing Dr. Akhonya produced the P3 forms in court as exhibits. Ag IP Waithera PW6 produced the complainant’s birth certificate as exhibit. It indicated that he was sworn on 9th December, 1995.

Defence Case

7. When placed to her defence the appellant stated in an unsworn statement that she is a professional prostitute in Kakamega town. That she met the complainant in a club. She did not know that he was a school boy. The complainant escorted her. They loved each other. They had sexual intercourse until the day she was arrested. She told the appellant to go home but he refused and threatened to commit suicide.

Submissions

8. The appellant submitted that she met the complainant in a bar. She wondered what a 17 year old boy was doing in a bar. That if it is true that she had locked him in the house, he did not scream for help. That the sexual intercourse was consensual. He refused to go home.

9. The state opposed the appeal. The prosecution counsel Mr. Ng’etich submitted that the age of the complainant was proved at 17 years. That the appellant admitted that she lived with the complainant for one month and that they were having sex. That in law a minor of 17 years cannot consent to sex. That having stayed with him for one month she should have realized that he was a minor. That she admitted that the boy was under the care of a step – mother. That the appellant admitted that she was a commercial sex worker. She did not state that the complainant was paying for the services. Further that the sentence imposed on the appellant was lawful. He asked the court to dismiss the appeal.

Analysis and determination

10. This is a first appeal. It is the duty of a first appellate court to re-evaluate and re – examine the evidence afresh and draw its own conclusions but making due allowance for the fact that the trial court had the advantage of hearing and seeing the witnesses. See Okeno Vs Republic (1972) EA 32.

11. The complainant alleged that she did not understand the language in which the proceedings were conducted –English and Kiswahili. The appellant made oral submissions in this appeal in Kiswahili language. She did cross- examine the prosecution witness as in the lower court and defended herself. This court found and was convinced that the appellant is fluent in Kiswahili language. There is then no truth that she did not understand the language of the court.

12. The appellant was unrepresented. She tends to contend that the complainant was above the age of 18 years as she met him in a bar. She contended that the complainant willingly stayed in her house and did not make attempts to escape. That he willingly consented to sex.

13. Section 8(5) of the Sexual Offence Act states that :-

It is a defence to a charge under this section if -

(a) it is proved that such child , deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and

(b) the accused reasonably believed that the child was over the age of eighteen years.

Section 8(6) states that :-

“The belief referred to in sub section (5) (b) is to determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.”

14. The complainant told the court that he stayed at the house of the appellant for more than a month. That the appellant used to lock him in her house when she was away. That it was not possible for him to escape. He however at the same time said that some girls used to visit the house. That in the evenings he would go to the homes of his aunts but he would go to spend the nights at the house of the appellant.

15. A birth certificate was produced that indicated that at the time that the offence was committed the complainant was aged seventeen –and-a half years. He was only 6 months short of his 18th birthday.

16. The complainant did not come out as credible witness. He said that the appellant used to lock him in the house when she was away yet he conceded that in the evenings he would go to visit his aunts but then go back to spend the night at the house of the appellant. He conceded that he knew where his parents home was but he did not go to his parents’ home. He conceded that there were some girls who used to visit the house of the appellant. He conceded that the appellant has neighbours whom he could have reported to if he was being unwillingly detained in the house. He said that the appellant was introducing him to the neighbours as her husband .All these factors clearly show that the complainant was willingly staying in the appellant’s house.

17. The appellant met the complainant in a bar. The complainant stayed in the appellant’s house for a month. There is no evidence that the complainant disclosed to the appellant that he was attending school. The complainant had opportunity to return to his parents’ home but he did not.

18. It is apparent from the circumstances of the case and the conduct of the complainant that he misled the appellant into believing that he was an adult. The complainant was almost 18 years of age. At that age, it was easy from the conduct of the complainant for the appellant to believe that the complainant was above the age of eighteen years. In fact the complainant was behaving like a husband. It is therefore the complainant who deceived the appellant into believing that he was above the age of 18 years. There was every reason for the appellant to believe that the complainant was above the age of 18 years. The trial court did not consider this aspect of the case.

19. In the foregoing, I find that the appellant was wrongly convicted of the offence as it is the complainant who deceived the appellant into believing that he was above the age of 18 years. The appellant had reason to believe that the complainant was above the age of 18 years. The appeal is therefore merited. The conviction against the appellant is quashed and the sentence set aside.

I order the appellant to be set at liberty forthwith unless lawfully held.

Delivered, dated and signed at Kakamega in open court this 26th day of July, 2018

J.NJAGI

JUDGE

In the presence of :

Appellant ……………………….…………..Appearing in person

Juma ………………………………………..for respondent/ state

George…………………………………......………court assistant

14 days right of appeal explained.