[2017] KEHC 674 (KLR)
The court found that the conviction for indecent act with a child was unsafe due to material inconsistencies and deliberate alterations in the medical evidence. The clinical officer's testimony conflicted with the P3 form regarding the timing of the examination and the presence of spermatozoa, and the unsigned...
Source-derived case information.
- Citation
- [2017] KEHC 674 (KLR)
- Parties
- Appellant: Bernard Kipyegon Kirui; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bomet
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 1 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- GO Shikwe
- Legal Topics
- Sexual Offences, Indecent Act With Child, Evidence Evaluation, Medical Evidence, Appeal Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Kipyegon Kirui
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for indecent act with a child was safe in light of inconsistencies in the medical evidence.
- 2 Whether deliberate alteration of evidence prejudiced the appellant's right to a fair trial.
Ratio Decidendi
The court found that the conviction for indecent act with a child was unsafe due to material inconsistencies and deliberate alterations in the medical evidence. The clinical officer's testimony conflicted with the P3 form regarding the timing of the examination and the presence of spermatozoa, and the unsigned cancellations in the P3 form suggested attempts to fix the appellant. These irregularities were prejudicial to the defence and undermined the integrity of the prosecution's case. The court held that it would be unfair to uphold a conviction tainted by such conduct and resolved the benefit of doubt in favour of the appellant. Consequently, the conviction was quashed and the sentence...
Court Disposition
appeal_allowed
Orders
- The conviction on the alternative count of indecent act with a child is quashed.
- The sentence of 10 years imprisonment is set aside.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BOMET
CRIMINAL APPEAL NO. 1 OF 2017
BERNARD KIPYEGON KIRUI.......................APPELLANT
-VERSUS-
REPUBLIC....................................................RESPONDENT
(Being an appeal from the original conviction and sentence in
criminal case No. 5 of 2015 PMs Court Sotik – Hon Barasa -SRM)
JUDGMENT
The appellant was convicted and sentenced to 10 years imprisonment for the offence of indecent act with a child Contrary to Section 11 (1) of the Sexual Offences Act.
The particulars being that on the 16th day of January 2015 at [particulars withheld] within Bomet County, intentionally and unlawfully touched the buttocks , breasts and vagina of M C a child aged ten years.
The prosecution in this case called six witnesses in support of its case. The appellant gave a sworn statement.
This is the first appellate court. It has a duty to re-evaluate and re-consider the evidence on record so as to arrive at its own conclusions bearing in mind that it did not have the opportunity to observe the demeanor of the witnesses.
Brief facts
The appellant is said to have been operating a posho mill belonging to his family. On the 16th day of January 2015 the complainant was send by her mother to grind maize. It is the evidence of the complainant that the appellant pulled her into another room behind the posho mill tore her short, removed his trousers and did bad things to her. She later went and reported to her mother of what the appellant did to her.
PW5 did examine the complainant on a history of defilement. There were no bruises on the labia majora. There was whitish discharge. Pus cells were seen Spermatozoa was also seen but there were no signs of penetration. The clinical officer informed the court that he examined the child on 17th January 2015. The offence as per the charge sheet is said to have been committed on 16/1/2015. In the same breadth he testified to have examined the child one week later. The learned trial magistrate did note that there were discrepancies in the medical documents which was a pointer of the possibility that PW5 did not examine the complainant as noted by the defence counsel.
In the last page of his judgment, 2nd paragraph he did observe “in view of these inconsistencies in the medical evidence and notwithstanding the conclusion of PW5 that there were some signs of penetration, this court finds it not safe to convict the accused on the first court of defilement having fallen short of proving the ingredient of penetration”.
I have perused the P3 form. If the clinical officer examined the complainant after a week there was no way he could find presence of spermatozoa. In his evidence he did testify that there was no penetration yet in the P3 form there are alterations which read “there were signs of penetration. The cancellations are not signed. This goes to show that there were attempts to fix the appellant in this case of defilement. The appellant however, was not found guilty of the offence of defilement but in the alternative count of indecency with a child Contrary to Section 11(1) of the Sexual Offence Act.
Section 2 of the Sexual Offence Act defines an indecent act thus;- An act which causes:-
(a) Any contact between any part of the body of a person with the genital organs, breasts or buttocks of another but does not include an act that causes penetration.
Having found that there were deliberate attempts to alter evidence in favour of the prosecution, which attempts were prejudicial to the case for the defence it would only be fair that the court not be seen to encourage such acts and resolve the case in favour of the appellant. Appeal allowed.
I find the conviction on the alternative count was not safe. The conviction is quashed and the sentence is set aside. The accused is set at liberty unless otherwise lawfully held.
Judgement delivered dated and signed this 14th day of November 2017 in the present of learned counsel for the prosecution Mr. Nabuyumbu learned counsel for the defence Mr. Kenduiwa holding brief Koech
Court assistant Mr. Rotich.
M. MUYA
JUDGE
14/11/17