[2023] KEHC 26519 (KLR)

ALS v Republic (Criminal Appeal E046 of 2021) [2023] KEHC 26519 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26519 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal E046 of 2021

DR Kavedza, J

December 8, 2023

Between

ALS

Applicant

and

Republic

Respondent

(Being an appeal against the original conviction and sentence delivered by Hon. P. Achieng’ SPM on 5th October 2021 at Ngong Magistrate’s Court Sexual Offences Case no. 32 of 2018 Republic vs ALS)

Judgment

1. The appellant was charged and after a full trial convicted for the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act, No. 3 of 2006. He was convicted to serve ten (10) years imprisonment. Being aggrieved, he filed an appeal challenging his conviction and sentence.

2. The ground of appeal have been summarised as follows: He challenged the totality of the prosecution’s evidence against which he was convicted. He argued that the trial court failed to conduct a voir dire examination on the minor.

3. As this is the appellant's first appeal, the role of this appellate court of first instance is well settled. It was held in the case of Okeno vs Republic [1972] EA32 and further in the Court of Appeal case ofMark Oruri Mose vs Republic [2013] eKLRthat this court is duty-bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that.

4. The prosecution called eight (8) witnesses in support of their case. NG (name withheld) the complainant after voir dire examination told the court that she is seven years old. On she was with the appellant in bed who performed a sex act on her. That he removed her dress and lowered her biker. He then proceeded to perform a sex act on her. She was in pain. At the time, her mother was not around. She came back and when she called the appellant jumped out of bed. The appellant threatened to beat her if she told anyone what had happened. She was later taken to Magadi Hospital for examination and treatment.

5. DK, (PW2) the mother of the seven-year-old complainant, testified that she and her daughter lived in [Particulars Withheld]. On November 3, 2018, around 9:30 pm, DK had friends, Beatrice and Edna, visiting. After escorting Beatrice home, DK returned to her house and observed the appellant in bed with her daughter through the window. Despite the complainant facing away, there was enough light for DK to witness the situation. She called out to the appellant twice, prompting him to hastily zip up his trousers. DK mentioned that the accused occasionally slept on her bed. When he opened the door, DK, feeling furious, intended to stab him with a knife, but her mother prevented her from doing so. Both DK and her mother examined the complainant and promptly called the police. However, by the time the police arrived, the appellant had fled and was later found hiding in a church building, leading to his arrest.

6. SSK (PW3) testified that on November 3, 2018, around 10:00 pm, she was watching TV at home. During this time, she heard PW2 calling the appellant from the window, who had been in the bedroom. The appellant came out of the bedroom, and PW2 appeared agitated and was crying. Concerned, PW3 woke up her husband and requested his intervention. PW3's husband instructed her to examine the complainant. Together with PW2, they checked the complainant in the bedroom, finding no visible injuries or signs of blood. Subsequently, PW2 contacted the police, who arrived and took both the complainant and PW2 to the station, as the appellant had gone to the church. PW3 added that they had shared their living space with the appellant for four years.

7. Dr. Geoffrey Ngeno (PW 4) of Magadi Hospital examined the complainant who was brought after a case of alleged sexual assault by someone known to her. On examination, she had pain in the lower abdomen. Her hymen was broken with no blood or discharge from her vagina although it was foul smelling. She also had infection in her urine. He concluded that she had been defiled. He filled the P3 form.

8. AJ (name withheld) provided an unsworn statement and told the court that mentioning that the complainant is his cousin. He lives with his father and described the complainant as his cousin, with D being his uncle. According to PW5, the appellant had been living with them until his arrest.

9. Ednah Sinet Kileyia (PW6) an employee at Tata Chemicals Magadi, testified that on November 3rd 2018, around 10:00 pm, she arrived at the complainant's home. Residing in flat A No. 6 on the same block while the complainant's family lived in house No. 5, they decided to knock on the window. Upon looking through the window, PW 6 witnessed the appellant engaging in a sexual act with the complainant. The lights from the sitting room illuminated both rooms since there was no complete partition. The appellant and the complainant were lying side by side, and the complainant's mother observed the incident. The appellant, wearing shorts, had lowered the front part. The complainant's grandmother was in the sitting room watching TV. Upon being confronted, the appellant left the building but was later arrested.

10. PW7, John Njuguna, a clinical officer at Nairobi Women Hospital, provided additional medical evidence in the absence of his colleague Christine Muchina, who was engaged in further studies. He testified that his colleague completed the PRC form and P3 form for the complainant, presenting these documents as exhibits.

11. The investigating officer, PWS No. 102092 PC Peter Ogiro, formerly at Magadi Police Station and currently based at Kibiko Police Post, testified in the case. He explained the investigations undertaken before charging the appellant.

12. After close of the prosecution’s case, the appellant was found to have a case to answer and was put on his defence. In his defence, he gave sworn evidence and did not call any witness. He told the court that at the material time he was employed as a casual worker at Tata Chemicals in Magadi. On October 31, 2018, he had a regular day and attended church in the evening for prayer. Unexpectedly, he was arrested at the church door, handcuffed, and taken to the police station. Allegedly, the police officers on duty subjected him to physical abuse, pressuring him to confess to a crime. The appellant denied the accusation, stating that a young child was brought in, claiming he had defiled her. They were subsequently taken to the hospital for examination, and he was later charged in court. He maintained that the complainant’s mother had sought a romantic relationship with him for an extended period, but, being a Christian, he resisted. He claimed that on October 28, 2018, she warned him that he would face consequences. He asserted that the case against him was a fabrication.

Analysis and determination. 13. I have considered the appeal, the appellant’s submissions and the applicable law. I will now analyse the evidence on record to ascertain whether the essential ingredients of the offence preferred against the appellant were established to the required standard of proof. Regarding proof of age, I wish to state at the outset that the importance of proving the age of a victim, proof of penetration, and positive identification of the assailant in sexual offences is paramount.

14. section 8(1) and (2) of the Sexual Offences Act, No. 3 of 2006 provides thus: -8. Defilement(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.

15. The complainant’s mother (PW 2) indicated that the complainant was born on 3rd December 2011 and was 7 years at the time of the alleged incident. Her birth certificate was produced to that effect which confirmed the confirmed that the complainant was a minor. The prosecution, therefore, adduced credible evidence to prove that indeed the complainant was a child at the time the offence was allegedly committed.

16. The question I must now grapple with is whether the prosecution adduced sufficient evidence to prove that the appellant defiled the child victim as alleged. PW 1 examination gave a unsworn statement in which she how the appellant whom they shared a residence with defiled her. He mother (PW 2) witnessed the incident through the window. She maintained that at the time there was enough lighting in the room. The evidence was also corroborated by PW 3 and PW 6 who were also present. It was also the complainant’s evidence that she was in a lot of pain during the encounter. She narrated that she was in a lot of pain and was bleeding during the ordeal.

17. The medical evidence presented confirmed that the complainant’s hymen was broken, infectious and was foul smelling. The conclusion by the medical doctor was that the complainant was sexually assaulted. There is no other possible explanation of what could have happened to the minor’s genitals besides evidence that she was defiled.

18. Regarding the identity of the perpetrator, the complainant identified the appellant after the incident. In addition, the appellant was well known to the complainant having lived with him. in addition, the incident was witnessed by the complainant’s mother (PW 2), PW 3 and PW 6. From the evidence, the complainant was very clear on the events that took place and the identity of the perpetrator. The appellant’s identification was therefore by recognition.

19. After my appraisal of the evidence on record, I am unable to fault the finding of the learned trial magistrate. The prosecution evidence leaves no doubt in my mind that the appellant defiled the complainant and the elements of the offence have been proven.

20. In his appeal, the appellant submitted that the trial court failed to conduct avoir dire examination on the minor. I have perused the original record of the trial court and note that before the complainant gave evidence the trial court performed a voir dire examination. This ground therefore fails.

21. On sentence, the appellant was sentence to serve 10 years imprisonment. The law provides for a sentence of life imprisonment. sentences are intended,inter alia, to punish an offender for his wrongdoing, they also aim to rehabilitate offenders to renounce their criminal tendencies and become law-abiding citizens. I have no doubt that the sentence imposed by the trial court, in this case, was lawful and nor harsh or manifestly excessive.

22. For the above reasons, the decision of the trial court is upheld and the appeal dismissed for lacking in merit.Orders accordingly.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF DECEMBER 2023_________________D. KAVEDZAJUDGEIn the presence of:Nyariota for the StateAppellant presentMateli C/A