[2022] KEHC 10990 (KLR)

CAM v Republic (DPP) (Criminal Appeal 130 of 2019) [2022] KEHC 10990 (KLR) (6 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10990 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal 130 of 2019

PJO Otieno, J

July 6, 2022

Between

CAM

Appellant

and

Republic (DPP)

Respondent

Judgment

1. In this appeal, the Appellant faults the trial court for having presided over a trial that offended both article 50 (2) of the Constitution, Section 198 (4) of the Criminal Procedure Code as well as Section 35 (1) and 36 (2) of the Sexual Offences Act; that it proceeded to convict and sentence on flimsy and inadequate evidence and lastly it erred by rejecting the evidence by the defence without offering any plausible evaluation.

2. Even though the court directed parties to file and serve submissions on the 27. 5.2021 by the time the file was handed to this court for preparation of this Judgment there was no submissions by either party.

3. The court being cognizant of its duty to reappraise, reevaluate and reexamine the entire record of evidence afresh and to come to own conclusions, and noting that the parties have been waiting for the determination since 17. 3.2022, opted to execute its mandate the absence of submissions notwithstanding.

4. Before the trial court, the Appellant faced the charge of defilement contrary to Section 8 (1) & (3) of the Sexual Offences Act facts being that on the 14. 12. 2018 in Kakamega North Sub County within Kakamega County, intentionally and unlawfully caused his penis to penetrate the vagina of EY a child aged twelve (12) years. He equally faced the alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act with alleged facts being that on the date and place disclosed in the main count, he caused his penis to penetrate the vagina of the victim, a child aged 12 years.

5. The evidence led by the prosecution included that of the victim who said she had on the material day celebrated the exit of a brother from circumcision rights which celebration was attended by among other the Appellant whom she calls grandfather. She, after the celebrations, then decided to go for choir practices and was told by the mother to pass by the Appellant’s home to pick milk. It is the same home they would fetch water from. The victim reached the Appellant’s home and found him in the house applying oil on himself but upon welcoming her, he closed the door and windows then covered her mouth. He put her on the bed, removed her clothes as well as his and penetrated her. When he was done, PW1 said, she saw mucus like substance in her vagina and the accused after checking that there was nobody in the vicinity ordered her to go and come back the next day.

6. She proceeded home and revealed to her mother, PW2, what had happened to her. The mother accompanied the child back to the home of the Appellant but did not get him but the victim showed the mother where she had been laid and defiled. The mother then decided to proceed to the police station.

7. On their way to the police station the Appellant appeared from behind the church and approached the witness for a discussion so that they could agree. The mother refused discussion and was dared by the accused to proceed because he is used to being arrested and released. The mother and daughter went to the police station, made a report and recorded statements then the victim was taken to Malava hospital for examination and was given medication to take for a period.

8. PW1 identified Appellant as the person who had attacked her and that was her first time to undergo the experience adding that the clothes were left at Malava hospital. She also said she was given some documents by the police which were completed at the hospital in her name. She marked the P3 and PRC forms as MFI. P1 and P2. She was then transferred to another school where the pupils call her M. The trial court noted that the child was shedding tears while giving evidence.

9. On cross examination, the witness said that she did not go to school that day because the teacher had told her to attend court and that on the material day of the attack she had gone to pick milk because the Appellant had a cow which had calved was being milked and the Appellant sold the milk. She reiterated that the Appellant had appeared from behind the church seeking to discuss with her mother and that when the mother declined, the Appellant dared her to proceed as she wished. The witness added that the land her family occupies was initially owned by the Appellant who sold it to the company which then exchanged it with the land belonging to the victim’s family. She denied having been defiled by any one before the Appellant did so.

10. In re-examination the witness told the court that it is the appellant who defiled her, that she felt pain and saw mucus like substance on her vagina spreading to her lower abdomen.

11. PW2, EAB, the mother to the victim, told the court that on the material day she had a celebration for initiation rights passage and later sent the victim to go and collect for her milk but she overstayed. However when victim came back and the witness asked why she had delayed the victim explained what had been done to her by the Appellant. She checked her vagina and saw sperms spread there and decided to confirm with the Appellant in his home but the Appellant was not there. She was shown the bed where the incident had occurred and on the bedsheet she saw sperms. The witness then came out of the house shouting and the Appellant then emerged from sugarcane behind the church and intimated the need for discussion but the witness declined on the basis that her child had been destroyed.

12. She went and reported the incident to Shamberere Police Station where the incident was recorded, then to Malava hospital where the child was examined and treated and put on some regime of medication. She said the victim was born on 15. 5.2006 and showed court birth certificate No. xxxx whose copy was produced as Exh. P3.

13. At the hospital the child was issued with PRC and P3 which were completed. The witness identified the documents by which the doctor had confirmed that the victim had been defiled. She confirmed being neighbour to him where she had lived for two years as at the date of the incident. The witness said she had no grudge with the Appellant and added that in the past the Appellant had defiled a daughter to his sister and the victim died in addition to a boy he had sodomised. She concluded that the accused attended the celebrations and gave an address to the effect that her children as his grandchildren.

14. In cross examination the witness told the court that she had sent the victim to pick for her a cup of milk from the Appellant and that the Appellant had since sold the cow he had been milking. She reiterated what she had been told by PW1 and what she saw herself at the house of the Appellant and that the accused hid from police before being arrested at Kabira.

15. She asserted having told the truth and that she was not interested in the Appellant who was too old for her being the age of her grandfather.

16. For PW3, a villager who attended the initiation celebrations at the home of PW2 and heard PW2 send PW1 to go and pick milk from the home of the Appellant. The witness was also present when the victim left and when she returned after one hour and told the mother what the Appellant had done to her. The witness then accompanied the complainant and PW2 to the home of the Appellant and witnessed him seek a talk with PW2. He added that the Appellant had previously been implicated in such acts including sodomy. He later recorded a statement at Shamberere Police.

17. In cross examination the witness told the appellant that he had stated what he saw including that the Appellant came to the celebration while carrying milk in a jerrican and that the child came back from the Appellant’s house dirty. He reiterated that the child left for the Appellant’s home at 5 p.m. and came back at 6 p.m. and that the Appellant having emerged from the sugarcane plantation had wanted the matter resolved with PW2 but the witness and complainant decided to report matter at the police station. He reiterated that he could not lie against the Appellant being his relative.

18. The 4th witness was a clinician based at Malava County Hospital. His evidence was to the effect that she did examine PW1 having been bought to hospital in the company of the mother with allegation of being defiled by a person known to her. He recorded the age of the child to be 12 years and that on physical examination the victim had bruised labia minora and freshly broken hymen but with no notable discharge but lab analysis of the high vaginal swab revealed presence of sperm pus cells and bacteria. She then completed Post Rape Case form and P3 form which she produced as exhibits.

19. In cross examination the witness told the court that she was a clinician with work experience spanning seven (7) years and that she examined the victim subsequent to an examination by Dr. Kevin. She however confirmed that she only examined the victim, extracted specimen by vaginal swab which revealed sperm cells but could not connect the sperm cells with the appellant.

20. PW5, No. 54049 Corporal Barnabas Koech, was the investigating officer who was at the station on the 14. 12. 2018 at about 7 p.m. when he received a complaint by PW1 while accompanied by mother, PW2. It was a report of defilement and the witness instructed PC Leonida Ngetich to take down the report which was to the effect that on the same date she had been defiled by a person known to her in the defiler’s house. The victim was then referred to Malava hospital where PRC form as well as P3 form were completed and the file compiled but the appellant was not arrested till 18/12/2018 because he had run away from his home. He said that his investigations revealed that the appellant was a neighbour to the complainant who was then aged 12 years.

21. In cross examination, the witness said he had worked as a police officer for a period of 30 years and that he did not witness the incident but relied on report made to the police and own investigation and that he never recorded a statement from the complainant and PW2 on account that they are women and that task was given to a lady officer who even took the victim to the hospital. He denied fixing the appellant and remembered that the victim walked with difficulties when she reported at the police station but he did not see any blood stains on her.

22. On re-examination he said that he had been at Shamberere for a year as at the time of giving evidence and that being the in charge he could delegate duties to other officers and that he did delegate recording of statements to PC Leonida because she is a lady and the complainant would be comfortable dealing with a fellow lady. He reiterated having investigated the matter jointly with Leonida and asserted that it is not the duty of a police officer to examine the complainant’s vagina. He said that the complainant identified the appellant by name and took the police to his home where he was missing.

23. PC Leonida Chepngetich, was the last witness to give evidence and told the court that on the 14. 12. 2018 while at the police station, she was detailed to book a report by the victim aged 12 years. The report was to the effect that on the same day she had been sent by PW2 to go and pick milk from the home of the accused when accused got hold of her, put on his bed and defiled her.

24. Owing to the fact that the complainant was walking with apparent difficulty and with blood stains on her pant, she advised that the child to be taken to hospital for medical before they came back to record witness statement during which the P3 form was later filled. She confirmed that her and PW5 visited the scene, compiled a file and to her the appellant and the complainants are neighbours.

25. After the close of the prosecution’s case the appellant was found with a case to answer and he chose to give unsworn evidence. In his said evidence he denied both the main and alternative counts of the charge while admitting that he attended the circumcision ceremony at the home of PW2 and left with the other guests only for the police to visit his home and have him arrested, taken to the Shamberere Police Station where he was charged before being arraigned in court to face the accusations. He then said that PW1 had told the Court that it was PW2 who had counselled her to implicate him and that the bed where she was alleged to have defiled PW1 was never produced in evidence. He also downplayed the evidence by PW4 as a person who did not examined PW4 but only relied on another doctor’s notes and that the blood stained pant of the complainant was never produced in evidence.

26. In a reserved Judgment dated the 6. 12. 2019, the trial court found that the prosecution had proved its case against the appellant beyond reasonable doubt, convicted the appellant and sentenced him to serve imprisonment term of twenty (20) years for the main charge.

27. The appeal was directed to be canvassed by way of written submissions but my perusal of the file did not come by any such submissions. That notwithstanding, the court has the solemn duty to reevaluate, reexamine and reappraise the entire record afresh with a view to coming to own conclusions while giving allowance for the fact that it lacks the benefit the trial court enjoyed in seeing and listening to the witnesses give evidence.

28. I appreciate the grounds of appeal to fault the trial court for failure to ensure that the dictates of article 50 (2) of the Constitution of Kenya, Section 198 (4) of Criminal Procedure Code and Section 35 (1) of the Sexual Offences Act were observed and complied with, that the evidence availed by the prosecution was flimsy and insufficient to prove and justify conviction for the offence charged and lastly that the plausible evidence by the appellant was disregarded.

29. I will therefore start with the question whether or not the evidence by the appellant was given the due regard.

30. In the judgment the trial court said of the defence evidence:-“The accused person in his defence only gave evidence on how he was arrested and by doing so, he did not rebut the consistent evidence on the court record by the prosecution witnesses.”I read the trial court to have given due consideration and gave reason why she found the evidence to have been culpable of controverting that by the prosecution. It cannot be true that the evidence was not given due regard.

31. In any event my reappraisal of that evidence concur with the trial court that the incriminating evidence of the prosecution witnesses about the injuries on the complainant, that the appellant sought to negotiate with the victim’s mother and that he went into hiding for days and could not be found at his home were not answered at all. I agree with the trial court finding that the otherwise cogent evidence by the prosecution was never rebutted materially.

32. On the proof and standard thereof, the court reminds itself that burden upon the prosecution, which never shifts, is that it has to prove the case beyond doubt. Reasonable doubt has been reiterated to mean a doubt as to whether a court properly directing its mind would doubt the accuracy and credibility of the witnesses presented and the occurrence of the alleged offence. It needs not read certainty but must carry high decree of probability

33. The charge having been that of defilement, it was the onus of the prosecution to prove the known three ingredients:-That the complainant was a minor.That the minor was penetrated.That the penetration was by the accused.

34. The record of the trial court I have reevaluated show that the appellant was not a stranger but a person known to the victim, had been with the victim at a ceremony during the same day, a neighbour and a person to whom PW1 would be sent in the past to go and pick milk. In fact the victim referred and knew him as a grandfather. There cannot thus be a question as to his identification or rather recognition by the victim. I do find that nothing is on the record to suggest that the recognition of the appellant as the attacker of the victim portends any prospect of mistaken identity. PW1, was never put to challenge just as there was no evidence of a grudge between the family of the complainant and the appellant that could have founded a basis to frame him. I do find that the appellant was sufficiently identified as the person who PW1 said defiled her.

35. On the age of the complainant, there was evidence by the mother in addition to a birth certificate produced without contention that the victim was born on the 15. 5.2006. The computation of her age as at the date of the offence gives an age of 12 years and seven months. The child was therefore aged between twelve and fifteen years. She was a child and therefore the first ingredient was duly proved.

36. On penetration, the only evidence of an eye witness is that of the victim, PW1. That evidence for purposes of sexual offences is sufficient even without corroboration provided it is cogent and credible to the court In this matter however, the evidence of the victim was corroborated by that of the medical officer that the victim had fresh bruises on her labia minora and freshly broke hymen. Moreover, there was equally evidence that when the appellant heard wailing by PW2, and emerged from the sugarcane farm, he sought to discuss the matter with the victim’s mother. Why would he make such overtures? The court finds that there was sufficient evidence, proving beyond reasonable doubt, that the victim, PW1, had been defiled by the appellant and therefore there cannot be any justification to interfere with the conviction reached by the trial court.

37. On the merit, based on evidence, therefore, the trial court properly guided itself, made no error in principle or in the appreciation of the evidence and application of the applicable law and reached a finding that is beyond a fault. I would on that basis dismiss the appeal in its entirety.

How about the fault that the law was not complied with? 38. Section 198 (4) Criminal Procedure Code mandates that the evidence be translated to the Accused or his advocate in the language of the court. For purpose of the trial court here, the code commands that it be English or Kiswahili. The record reveal that the proceedings were conducted in English and Kiswahili throughout including the evidence by the appellant. There is nowhere in the record where the appellant raised a complaint or a request for translation to be in a different language. There is no allegation by the appellant that any piece of evidence was given in a language he did not understand so as to require interpretation. On that basis I find no merit in the fault as the record does not reveal the complaint to be true.

39. Article 50 (2) guarantees the right to a fair hearing with many ingredients to meet that right. As put it is not succinct what ingredient was not accorded unto the appellant. it is one of those grounds that may be viewed as a net widely cast with hope that it may just net something, whatever it is that may be, in the fishing waters at the time. I find the ground to fall short of the requirements of Section 350 (2) Criminal Procedure Code that the petition of appeal contains the particulars of the matters of law or fact the trial court is faulted for having erred. There is a demand for precision in the framing of grounds of appeal so that none is nebutrous or just hazy for appreciation and discernment by the respondent as well as the court.

40. That notwithstanding my reappraisal of the record has yielded no non-compliance or observance of the dictates of article 50 (2) and I find no justification to interfere with the process leading to the conviction.

41. On Section 35 (1) and 36 (2) of the Sexual Offences Act having ben affronted, the two provisions stipulates as follows:-“35 (1) A court shall upon conviction of a person having committed a sexual offence and if satisfied that the convicted person is dependent on or has the propensity to misuse alcohol, any drug or is suffering from any other disorder, and may benefit from treatment, grant an order for treatment or professional counseling and such an order shall be made in addition to any sentence, including a sentence of imprisonment which is not suspended.36 (2) The sample or samples taken from an accused person in terms of subsection (1) shall be stored at an appropriate place until finalization of the trial.”The court sees the two provisions to be invocable at the discretion of the court once the matter lands in court.

42. The appreciation is that in order to meet the ends of justice in identifying the proper sentence or to satisfy itself as to the linkage between samples previously taken for the victim and the accused. That discretion must be left to the trial court as the trier of facts and not be asked of an appellate court.

43. The court find that no affront was made to the law alleged to have been breached or ignored and therefore there has not found any substance on that limb of the appeal as well.

44. In conclusion, the entire appeal is found to lack merits and is therefore dismissed.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 6TH DAY OF JULY 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Appellant in personMr. Mboozo for Chala for the Respondent/ODPPCourt Assistant: Kulubi