[2022] KEHC 13903 (KLR)

Barasa v Republic (Criminal Appeal 57 of 2013) [2022] KEHC 13903 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13903 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal 57 of 2013

SN Riechi, J

October 5, 2022

Between

Moses Masika Barasa

Appellant

and

Republic

Respondent

(An appeal from the conviction and sentence by Hon C.L Yalwala (P.M) in original Bungoma C.M.C’s Criminal Case No. 1516/2011 delivered on 18/4/2013)

Judgment

1. The appellant was charged in with the offence of defilement contrary to Section 8(1) as read with 8(3) of the Sexual Offences Act, 2006 the particulars being that on diverse dates 23rd and July 29, 2011 at Chwele Market within Bungoma County did intentionally and unlawfully cause his penis to penetrate the vagina of SKK a child aged 14 years.

2. He faced an alternative count of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006 the particulars being that on diverse dates between 23rd and July 29, 2011 at Chwele Market in Bungoma County did intentionally and unlawfully cause his penis o come into contact with the vagina of SKK a child aged 14 years.

3. Upon arraignment, the appellant pleaded guilty to the main count. He however pleaded not guilty to the facts and the suit proceeded to hearing with witnesses testifying as follows;.

4. PW-1 stated that she was aged 14 years and a class 5 student at (particulars witheld). That on 22//2011, her mother warned her against returning home over the loss of some maize the minor is suspected to have stolen. The minor after school went to the house of Hellen, her mother’s friend. She spent the night there.

5. The following morning, she went to Chwele Market and stood by the gate when she was approached by the appellant who identified himself as MMB. He asked her to accompany him to where her grandfather was. The appellant took her to his house where there were 2 children in the house. the appellant locked the minor and the 2 children in the house. in the evening, he came back at about 10. 00 pm and defiled the minor as she tried to leave the house. The appellant would lock the minor and the children in the house every morning for 7 days until the minor was rescued by her uncle J. The appellant was arrested and escorted to Chwele A.P Camp. The complainant was taken and examined at Bungoma District Hospital.

6. PW-2, JNM, the minor’s mother stated that her daughter was born on March 20, 1997 and produced a birth notification to that effect. She stated that her daughter did not return home from 22/7/2011 until 29/7/2011 when she overheard women in Chwele Market talking about a girl who had been locked in a house. she checked and confirmed the girl was her daughter. The appellant was arrested and escorted to Bungoma Police Station.

6. PW-3, JWM watchman watchman at Chwele Market stated that on 27/7/2011 while at the market, he met his sister PW-2 who told him that her child was missing. He promised her to be on the look-out. On 29/7/2011 he received news of a child locked in a house. He proceeded to that house and found the minor clothing another child. He knew the owner of the house to be Moses.

7. PW-4, SK, the minor’s father stated that on 22/7/2011, PW-2 informed him that the minor had allegedly sold some maize and when she inquired, the minor answered she had left the money with another child at school. She was instructed to go back and bring the money. The minor did not return that day. On 29/7/2011, PW-3 called him informing him the minor had been found in a house belonging to the appellant. They arrested the appellant and took him to Chwele A.P camp, later Bungoma Police Station and the district hospital for examination.

8. PW-5 Dr. Jedida Kimutai from Bungoma District Hospital produced the P3 form filed by Dr. Maina and the age assessment which placed the minor’s age at 14 years. From physical examination of the minor, the external genitalia was normal and the hymen not intact. She had no abnormal discharge. She concluded that the minor had penetrative sex.

9. PW-6, CPL Eunice Kanda, the Investigating Officer stated that she received report of defilement where she received the minor and the appellant at the station. She accompanied the minor for medical examination and locked the appellant in the cells. After the minor’s examination, she charged the appellant with the offence.

10. The appellant was put on his defence and opted for an unsworn statement to the effect that on 26/7/2011, he was offered a ride by his friend to Sichenyi where they had tea. The friend thereafter left him behind before 2 police officers arrested him and took him to Chwele Police Station from where he was charged with an offence he did not commit.

11. The appellant was subsequently convicted and sentenced to 20 years imprisonment. Aggrieved, he preferred the instant appeal which is anchored on the following grounds;1. The learned trial magistrate erred in law and facts by not appreciating that the complainant denied having involved in sexual intercourse with the appellant.2. The trial magistrate erred by not considering the fact that the complainant was coached by her father to implicate him.3. The trial magistrate erred by holding that the medical evidence proved penetration.4. The trial magistrate erred in failing to appreciate that the owner of the house was not produced.5. That the minor’s age varied from 14 to 16 years and was not confirmed by age assessment or birth certificate.6. The case was not proved beyond reasonable doubt.

12. This being a first appeal, the duty of this court is as was espoused in David Njuguna Wairimu Vs. Republic (2010) eKLR where the court held;….. to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.

13. It is now settled that for the offence of defilement to be proved, the following ingredients have to be established; the complainant’s age, Penetration and positive identity of the assailant.

14. Before delving into the main issues raised in the appeal, the record shows that the minor was born on 20/3/2017. PW-2 stated that her daughter was aged 14 years. As such, the trial court ought to subject the minor to voire dire under Section 19 of the Oaths and Statutory Declarations Act which provides;

15. Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.

16. The importance of conducting voire dire were stated in Maripett Loonkomok V Republic (2016) eKLR the court of appeal sitting in Mombasa held as follows: -…… It follows therefore that the time- honored 14 years remains the correct threshold for voir dire examination. It follows from a long line of decisions that voir dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this Court recently found that: -“In appropriate case where voire dire is not conducted, but there is sufficient independent evidence to support the charge… the court may still be able to uphold the conviction.”

17. In this matter, it is clear that the voire dire was not conducted. The court did not go into an inquiry of whether the minor understood the importance of telling the truth. The court is however alive to the fact that failure to so conduct the voire dire in appropriate cases is not fatal to the prosecution’s case so long as the minor’s evidence is corroborated.

18. Having perused the record, the issue of age was proved by production of Notification of Birth and corroborated by the minor’s testimony, her mother and the age assessment conducted.

19. On the issue of penetration, the minor stated that the appellant held her as she tried to open the door, pulled her back, undressed her and defiled her on the ground. The clinical officer stated that on examining her, the genitalia was normal and the hymen not intact. She noted no abnormal discharge.

20. Having reviewed the record, the submissions and the legal provisions, I find that the failure by the trial court to conduct voire dire was fatal to the prosecution’s case as the court would not ascertain the weight to attach to her evidence. I therefore find that the conviction based premised on her evidence is unsafe.

21. I therefore find the appeal has merit and is allowed. The conviction and sentence is hereby set aside. The appellant Moses Masika Barasa is set at liberty unless otherwise lawfully held.

DATED AT BUNGOMA THIS 5TH DAY OF OCTOBER, 2022. S.N. RIECHIJUDGE