[2018] KEHC 4883 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CRIMINAL APPEAL NO. 23 OF 2017

BENSON KAMAU .......................... APPELLANT

VERSUS

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

(An Appeal from the Judgment of the Chief Magistrate Honourable C. Obulutsa in Eldoret Criminal Case No. 2582 of 2015 dated 13th February, 2017)

JUDGMENT

BENSON KAMAU, the appellant herein, was charged in the lower court with a main count of defilement, contrary to Section 8(3) of the Sexual offences Act No. 3 of 2006.

The particulars of this offence are that on the 31st day of May, 2015 in Eldoret West District, within Uasin Gishu County, the appellant intentionally and unlawfully caused his genital organ (penis) to penetrate the genital organ (vagina) of J E, a girl aged 15 years.

In the alternative he faced a charge of indecent Act with a child, contrary to Section 11(1) of the Sexual offences Act No. 3 of 2006. The particulars hereof are that on the 31st day of May 2015 in Eldoret West District within Uasin Gishu County, the appellant intentionally and unlawfully caused his genital organ (penis) to come in contact with the genital organ (vagina) of J E, a girl aged 15 years.

The prosecution case is that the complainant in this case who gave evidence as PW-1 was born on 15th April, 1999. At the time of the alleged offence which was on 31st May, 2015, she was therefore aged 16 years. She was living with her uncle the PW-2 in this case, at West Indies. She was schooling in class 7 at [particulars withheld]. The uncle travelled to his rural home leaving the complainant in charge of his children. On the material day, 31st May, 2015, at 9 a.m the complainant went to the church. Thereafter she met the appellant whom she referred to as Besca. He was known to her. He invited her into his house and she agreed. When they got into his house he told her that she’ll go back the following day. She spent the night there and they had sex. On 1st June, 2015 the uncle returned home at 8 p.m and was told that the complainant disappeared after going to church. He started looking for her. The appellant had escorted the complainant upto West Indies and told her that she wanted to see her uncle. The uncle saw them outside the gate and apprehended them. He led them towards the police station and on the way the complainant escaped. The uncle had assistance of PW-3. Upon reaching the police station the appellant was asked about the complainant. He led PW-2, PW-3 and PW-5 to his house where they found the complainant. Complainant was issued with a P-3 form which was filled by PW-4 at Moi Teaching and Referral Hospital on 1st June, 2015. The P-3 form on general medical history shows that the complainant was with a boy friend and had an unprotected sex for four times on different days, including 31st May, 2015. On examination the Doctor found that she had old hymeneal tear and a whitish discharge. High vaginal swab examination revealed moderate epitherial cells, VDRL was negative, as well as HIV. There were few pus cells and pregnancy test was negative. The Doctor concluded that she had consensual sex with a boy friend and she was aged 15 years. PW-5 investigated the case and had the appellant charged with the offences.

The appellant gave unsworn testimony in his defence and called no witness. He told the court he was 33 years old. On the material day he was on night duty. The girl and a boy requested him to take them to Huruma. He declined. When he drove off he was stopped by police officers on patrol and arrested. He was then charged.

The trial court evaluated the evidence and found the offence in count 1 proved by the prosecution beyond reasonable doubt. The age of the girl was however corrected from 15 years to read 16 and Section 8(3) corrected to read 8(4). The appellant was convicted of the offence and sentenced to serve 15 years imprisonment.

The appellant dissatisfied with the said conviction and sentence, appealed to this court on the grounds that:-

(1) No documentary evidence was availed to verify the complaint.

(2) The medical evidence did not connect him with the offence.

(3) He got no chance to hire an advocate.

(4) He is a first offender.

The appellant offered written submissions. In summary he alleged that the charge sheet was defective. The complainant gave his name as Besca and the name was not used as an alias. Her age was also not well settled. On cross examination she said she was 18 years old. The charge sheet indicated she was 15 years old as well as the P-3 Form, while the produced Birth certificate indicated she was 16 years old. The appellant also averred that the P-3 form contradicted the rest of evidence. The complainant said the appellant wanted to be her friend and that is the only time they had sex. However, the P-3 discloses she had sex four times with the boyfriend, including on 31st May, 2015. The appellant alleges the boy friend must be another person and not him.

Mr. Mulati for the state opposed the appeal. He alleged that the prosecution proved the offence beyond reasonable doubt. The Birth certificate established the complainant was 15 years old. The clinical officer who produced the P-3 confirmed there was penetration. Though the name in the charge sheet of the appellant is not the name given by the complainant in her evidence, the appellant led PW-2, PW-3 and PW-5 to his house where the complainant was got, which shows the right person is the one who was charged. The complainant was aged 15 years and was not a child of tender age. There was no need for a voire dire. He urged the court to dismiss the appeal.

I’ve re-evaluated the entire evidence carefully, considered the judgement of the trial court, grounds of appeal and submissions by both sides. What I find of importance in determination of this appeal relates to provisions of Section 8(5) (a) and (b), and also (6) of the Sexual Offences Act No. 3 of2006. It reads:-

(b) It’s a defence to a charge under this Section if –

(a) it’s 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.

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

There is no doubt in this case that the appellant and the complainant engaged in a consensual sex. The complainant according to her Birth Certificate was aged 16 years. 16 years is just 2 years short of 18 years. The incident happened on a Sunday after church and she was not therefore in a school uniform. The trial court which saw her never made an observation that given her appearance nobody could have reasonably mistaken her for an adult. On 20th July, 2015 the court conducted what’stitled a voire dire. The complainant is recorded to had said:-

“I am 18 years. I reside in [particulars withheld]. I go to school in [particulars withheld]. I am in class 7. I go to church, Salvation Army. It’s bad to tell lies. I understand the oath”.

The brief cross-examination done by the appellant to her, was in relation to her age. She stated,

“According to what I know, I am 18 years from my birth certificate. My uncle did not tell me what to say”.

What is vividly reflected by the foregoing position by the complainant is that she believed she was 18 years old. There’s no evidence adduced by the prosecution which shows the appellant had reasonable cause to believe or even suspect otherwise. Him, having cross examined the complainant about it, as a lay person to matters of law, is an effort by him to show that the appellant was an adult or he had a reasonable cause to believe that she was. On whether by this the appellant discharges the burden placed upon him by the law, I have considered the finding by the Supreme Court of India in the case of PARTAP -VS- STATE OF UTTAR PRADESH (1976) AIR (VOL.63) 966 at 973 RISHI KESH SINGH (1970) AIR 51 at 89 where the court observed that:-

“…..although the law prescribes only the higher burden of the prosecution to prove its case beyond reasonable doubt and the accused’s lower burden of proving his plea by a preponderance of probability only, yet, there’s in practice, a still lower burden of creating reasonable doubt about the accused’s guilt, and that an accused’s can obtain an acquittal by satisfying this lower burden too in practice. The objection to stating the law in this fashion is that it works like introducing a new type of burden of proof, though, it may be said, in defence of such a statement of the law, that it only recognizes what is true. Alternatively, one may say that the right of the accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution’s undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded”.

Revelation by the complainant that she was 18 years old, during the voire dire, and also when she was cross examined by the appellant, when weighed together with her behavior of escaping while on the way to the police station, back to the appellant’s house, and the fact that when her uncle saw her with the appellant, the appellant according to her, wanted to talk to her uncle, indicates strongly on balance of probability, that the appellant believed she was 18 years old. The evidence raises reasonable doubt to the contrary, of which doubt need be resolved in favour of the appellant. It’s on this ground that I find the appeal merited. It’s allowed. The conviction and sentence are hereby quashed. The appellant is set free unless otherwise lawfully held.

S. M GITHINJI

JUDGE

DATED, SIGNEDandDELIVEREDatELDORETthis25th day ofJuly 2018

In the presence of:-

(1) The appellant

(2) Ms Kagali for State

(3) Mr. Mwelem Court clerk