[2022] KEHC 15082 (KLR)

Aliow v Republic (Criminal Appeal E031 of 2021) [2022] KEHC 15082 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 15082 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal E031 of 2021

SN Mutuku, J

October 13, 2022

Between

Abdulahi Aliow

Appellant

and

Republic

Respondent

(Being an appeal against both conviction and sentence of the Hon. Hon. Shitubi (Chief Magistrate) delivered on 24th March, 2021 in Criminal Case No. 40 of 2020)

Judgment

1. The Appellant, Abdulahi Aliow,was charged with defilement contrary to section 8 (1) as read with section 8(4) of the Sexual Offences Act. (herein referred to as the Act). The particulars thereunder were that on 11th September, 2020 at [Particulars Withheld] estate Namanga sub-county of Kajiado County intentionally caused his penis to penetrate the vagina of MW a girl aged 17 years.

2. He was tried and found guilty. He was convicted and sentenced to serve five (5) years imprisonment on March 24, 2021. He was aggrieved by the conviction and the sentence and has filed the instant appeal through his Petition of Appeal filed on April 4, 2021. He seems to have changed his mind about the initial grounds of appeal which he has re-worked to read as follows:(i)That the Learned trial magistrate erred in law and fact in not considering that the prosecution evidence was uncorroborated, inconsistent, and incapable of justifying any conviction.(ii)That the Learned trial magistrate erred in law and fact by relying on circumstantial evidence of the prosecution which was not corroborated by any witness or facts.(iii)That the Learned trial magistrate erred in law and fact by not considering the Appellant’s defence and shifting the burden of proof from the prosecution to the defence.(iv)That the Learned trial magistrate erred in law and in fact by not considering the provisions of section 11 (2) and 8 (5) of the Sexual Offences Act.(v)That the Learned trial magistrate erred in law and in fact in convicting the Appellant against the weight of the prosecution evidence adduced.

Submissions 3. The Appeal was canvassed through written submissions. The appellant filed his submissions on May 24, 2022. He has raised four issues for determination:(i)Whether the complainant was a minor.(ii)Whether there was penetration.(iii)Whether the Appellant was the perpetrator.(iv)Whether the offence of defilement was proved beyond reasonable doubt.

4. On the first issue on whether the complainant was a minor, the Appellant argued that no birth certificate was produced or an age assessment conducted to confirm that the age of the complainant was 17 years. He further that the complainant did not indicate her date, month and year of birth. He submitted that the trial court erred in assuming that the complainant was aged 17 years when there was no evidence to prove that she was aged 17 years.

5. The Appellant relied on Chipala v Republic [1993]16 (2) MLR 498, a Malawian case; Alfayo Gombe Okello v Republic [2010] eKLR and Kaingu Elias Kasomo v Republic, Malindi Criminal Appeal No. 504 of 2010 to emphasize the importance of prove of age of the victim in sexual offences.

6. On the issue of penetration, he argued that the complainant testified that she slept with the appellant several times and he was responsible for her pregnancy. That she also stated that, Brendat, her employer’s cousin found them in the alleged act. That the said Brenda was never called to testify. It was his case that the complainant was not categorical on what she meant by the term ’sleeping.’ He citedSamuel Muchozi Ludenyo -vs- Republic[2022] eKLR in which the court held the view that the description of what penetration entails is a legal term and has to be specific and that the prosecution should lead evidence on what exactly happened.

7. The Appellant argued, further, that the report by the clinical officer (PW3) did not indicate any bruises, injury, lacerations or tears on the complainant’s genitalia and that the positive finding was pregnancy which is not conclusive evidence of penetration by the Appellant. It is his case that the act of penetration was not proved beyond reasonable doubt.

8. On whether the appellant was the perpetrator, the Appellant argued that there was no sufficient evidence by the prosecution that the appellant was positively identified as having impregnated the complainant. That since the baby was born there was no attempt by the prosecution to procure a DNA test to support their case.

9. On whether the prosecution proved their case beyond reasonable doubt, it was his case that the trial court did not consider the gaps in the prosecution’s case; that the key witnesses, such as Brenda and Dr. Ismali Abdi, who performed the alleged age assessment report, were never called to testify.

10. The Appellant relied on Bukenya v Uganda [1972] EA 549 on the issue of leaving out crucial witnesses and section 143 of the Evidence Act. They averred that the evidence was not adequate to prove the ingredients of the offence the appellant was charged with.

11. The Respondent filed their submissions on June 14, 2022. The Respondent has raised 3 issues for determination:(i)Whether the offence of defilement was proved beyond reasonable doubt.(ii)Whether the evidence of the defence was considered.(iii)Whether the sentence awarded was legal and constitutional.

12. The Respondent analyzed the ingredients of defilement and submitted on each of the ingredients. On the issue of penetration, it was submitted the complainant testified that she had slept with the appellant many times since June 2020 and that she became pregnant; that the evidence was corroborated by the evidence of PW3, the Clinical Officer who upon conducting tests stated that the minor was pregnant and produced a P3 Form to that effect; that the fact that the complainant was pregnant was sufficient evidence of penetration and that it has well been established that evidence of defilement or rape need not be proved by medical evidence or DNA. The Respondent relied on section 124 of the evidence Act.

13. On the age of the minor, the Respondent submitted that the age of the victim is critical in defilement cases and relied on Mwalango Chichoro Mwanjembe v Republic Mombasa C.A No. 24 of 2015 UR. It was submitted that the complainant testified that she was 17 years old which was corroborated by evidence of the Clinical Officer who indicated the age of the minor as 17 years.

14. On the issue of positive identification of the accused it was submitted that the complainant testified that she had known the Appellant since she started working for her employer (Esther) in June 2020; that she would meet the Appellant 2 to 3 times a week at Esther’s place and that they would sleep together on several occasions and therefore, the Appellant was therefore well known to the complainant.

15. On whether the evidence of the defence was considered. The Respondent submitted that the appellant alleged in his defence that he had not been around from January 2020 to July 16, 2020 as he had gone to Moyale but there was no evidence produced to that effect and no witnesses were called to corroborate this. It was the Respondent’s case that the trial court considered the evidence and dismissed the same for want of merit.

16. On whether the sentence was judicious, the Respondent relied on Court of Appeal decision in Bernard Kimani Gacheru v Republic [2002] eKLR that sentencing is discretionary and that an appellate court will not necessarily interfere with sentence unless it is manifestly excessive or the trial court overlooked some material factor or took into account some wrong material or acted on wrong principle. It is submitted that the trial court considered all facts of the case and sentenced the appellant to 5 years imprisonment.

Determination 17. I have read the entire record of the lower court. My duty is to re-evaluate, re-analyze and re-consider all the evidence adduced before the trial court with a view to arriving at an independent conclusion.

18. The offence of defilement has 3 key elements that must be proved beyond reasonable doubt; namely: is penetration, age of the victim and identity of the accused. It is upon this court to establish whether the prosecution proved these three elements beyond reasonable doubt.

19. I have considered the entire evidence. The complainant testified that she started working as a house maid for her employer (Esther) in June 2020. She testified to how she met the Appellant and became friends; how she would meet up with the Appellant 2 to 3 times a week; how the appellant would visit her at night and sometimes when her employer was asleep and how they would sleep together. She testified that she became pregnant out of those encounters with the Appellant.

20. The fact of her being pregnant was corroborated by the Clinical Officer who backed that evidenced by producing a P3 Form to that effect. The evidence from the Clinical Officer is that there were no injuries on the complainant’s genitalia. It is therefore clear to me that the fact of penetration was based on the fact that the complainant was pregnant.

21. The Appellant testified to having been away until July 2020. This was an attempt by him to show that he could not have been responsible for the pregnancy. He also questioned what the complainant meant by the term ‘’slept with’’ claiming that the meaning of “sleeping with” was not explained by the complainant.

22. I have considered the evidenced of the complainant. It is clear to me that the two were having consensual sex. The Appellant has no duty to prove his innocence. It is the prosecution that bears the onus of proving the Appellant guilty. I have considered the evidence that the Appellant and the complainant were found together inside PW2’s house in circumstances that clearly indicated that they were girlfriend and boyfriend. The evidence is clear that at the time the complainant and the appellant were in a relationship where they would have sexual intercourse that resulted in a pregnancy. It is therefore clear that penetration did indeed occur.

23. The circumstances under which they were found on September 12, 2020 clearly point that they were engaged in an intimate relationship. This coupled with admission by the Appellant that the complainant was his girlfriend leads me to the conclusion that they engaged in sexual intercourse. It is safe, in my view, to conclude that penetration did take place.

24. The issue to consider is whether proof of penetration alone, in the absence of proof of the other two ingredients of defilement is sufficient to base a finding of guilt on. I note that the identity of the accused as the perpetrator is not in doubt. I make a finding, based partially on Appellant’s admissions and prosecution evidence, that the identity of the appellant is not in doubt as the same has been proved beyond reasonable doubt.

25. Turning to the element of the age of the complainant, I have considered the evidence of the prosecution on this issue. The complainant told the trial court that she was aged 17 years. The trial court, in an attempt to ascertain the age, ordered for age assessment. This was not done due to the complainant’s pregnancy as stated by PW4. It is true that no age assessment was done because Exhibit 4, the age assessment report by one Dr. Ismail Abdi, shows that “No assessment was done because of pregnancy …..”. Dr. Ismail Abdi did not testify to explain this report.

26. As far as the evidence shows, the age of the complainant was not ascertained. The Appellant believed, according to his evidence, that the complainant was an adult since she was working and earning a salary. He believed she had applied for an Identity Card since she told him that she had an ID waiting card, meaning that her ID card was being processed.

27. The evidence of PW4, PC Monica Wanjiku, is that the complainant said that she had an ID waiting card. This witness said that she was not given that ID waiting card. The evidence on record is clear that the age of the complainant has not been ascertained. Although the complainant testified that she was aged 17 years, she did not produce a birth certificate, clinic card or birth notification card to show when she was born. Her mother or father did not testify to shed light on when she was born. Her age assessment was not done. She had told the Appellant that she had an ID waiting card. She told PW4 the same story. The Appellant believed that the complainant was an adult given her working for a living status.

28. Proof of age is crucial in a sexual offence under Section 8 of the Sexual Offences Act. This is the case because the penalty under that section is age of the victim related. For justice to be served, it is crucial that the prosecution proves the age of the victim to avoid miscarriage of justice.

29. The importance of proving age of the victim has been subject of various authorities including Hadson Ali Mwachongovs. Republic[2016] eKLR, where the court stated as follows:“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of victim. (See also Alfayo Gombe Okello v Republic Cr. App. No. 203 of 2009 (Kisumu).

30. The trial magistrate was wrong to find that the age assessment showed that the complainant was aged 17 years. The evidence on that issue is not cogent. This element of defilement was not proved beyond reasonable doubt. And that is the weak link of the chain. With one of the three elements not proved beyond reasonable doubt, it cannot be said that the offence of defilement was proved. The complainant could have been 18 years for all this court knows. She could have been an adult engaging in consensual sex with her boyfriend.

31. My conclusion of this matter is that without proof beyond reasonable doubt that the complainant was under the age of majority, this charge cannot stand. There was no alternative charge to the charge of defilement. The prosecution, therefore, have nothing to go by.

32. I have also noted that the voir dire examination conducted by the trial court cannot pass the test. This issue was not raised by the Appellant. In any case, the complainant may not have been a child of tender years but nonetheless, the trial court ought to have done the correct thing in conducting the examination.

33. From the record, the trial magistrate clearly made a finding that the complainant was intelligent enough to give a sworn statement when the question and answer administered showed the opposite. It is clear to me that the complainant did not understand the meaning of an oath, even though she said she was 17 years old and attended church.

34. What the trial court ought to have done is to make a finding that the complainant did not understand the nature of oath and therefore could not testify under oath. The trial court should then have continued to find out if the complainant possessed of sufficient intelligence to enable her testify but without taking oath.

35. My conclusion of my determination of this matter is that the trial court erred in finding the age of the complainant proved beyond reasonable doubt to be 17 years when there is no cogent evidence to that fact. The consequence of this conclusion is that the appeal is merited. The prosecution has failed to prove all the elements of defilement beyond reasonable doubt. Consequently, the appeal succeeds, the conviction is hereby set aside and the sentence quashed.

36. The Appellant shall be set free forthwith to go home unless for any other lawful cause he is held in custody. It is so ordered.

DATED, DELIVERED AND SIGNED THIS 13TH OCTOBER 2022. S. N. MUTUKUJUDGE