[2017] KEHC 2918 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CRIMINAL APPEAL NO. 46 OF 2016

CHARLES OBONDO ODHIAMBO…………………………...…………....…......……………….APPELLANT

VERSUS

REPUBLIC………………...……………….....……....…………………..……………………….RESPONDENT

(Appeal against Conviction and Sentence imposed in Criminal Case Number 590 OF 2014 in thePrincipal Magistrate’s Court at Winam on 23rd September 2016 by Hon. J.Mitey (RM))

JUDGMENT

The Trial

The Appellant herein Benard Oloo Ombewa has filed this appeal against sentence and conviction on a charge of defilement contrary to section 8(1) as read with section 8 (2) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge are that

On 27. 4.14 at about 12. 00 pm within Kisumu County intentionally caused your genital organ namely penis to penetrate the genital organ namely vagina of M A a girl aged 4 years

The prosecution called a total of seven (7) witnesses in support of its case. E A O, the complainant’s mother told court that complainant was born on 12. 4.10 as shown on her clinic card PEXH. 1. She recalled that on 27. 4.14, the appellant went with the complainant to pick fruits and after sometime the child returned alone, crying carrying her pants in her hand. That she suspected that the child had been defiled and upon checking on saw scratch marks on her stomach and thighs. That she raised an alarm and the appellant was arrested and handed over to the police. PW2 the complainant told court that appellant took her to a bush behind their house and laid on her. PW6 Dr. Rukia Aksam, produced the complainant’s P3 form filled by Dr. Awendo on 29. 4.14 who had gone for further studies as PEXH. 2. It shows that complainant was 3 years old and her hymen was broken. PW6 PC Charles Chirchir investigated this case and charged the appellant.

At the close of the prosecution case, the appellant was ruled to have a case to answer and was placed on his defence. He gave sworn defence in which he denied the charges. He said he was arrested on 27. 4.14 and accused of attempting to defile the complainant and was later charged with an offence eh did not commit.

In a judgment delivered on 23. 9.16, the appellant was convicted and sentenced to serve life imprisonment.

The appeal

Aggrieved by this decision, the appellant lodged the instant appeal. In his amended grounds of Appeal filed on 25th July, 2017, the appellant set out 4 grounds of appeal to wit:-

1. That the learned trial magistrate erred in law and in fact in failure to consider that the conviction was based on blood witnesses.

2. That the lower court erred in law and in fact in failure to observe that the prosecution was below the required standard

3. That the learned trial magistrate erred in law and in fact in failure to consider that the age of the complainant was not conclusive

4. That the lower court erred in law and in fact in failure to observe that the doctor exculpated the appellant

5. That the learned trial magistrate erred in law and in fact in failure to consider that the prosecution case was not well investigate

When the appeal came up for hearing on 25. 7.17, the appellant wholly relied on the amended grounds of Appeal. Ms. Wafula, Learned Counsel submitted that the appellant was positively identified as the defiler by the complainant and that the doctor confirmed that the child had been defiled.

This being a court of first appeal, I am guided by the ruling of the Court of Appeal in the case of OKENO VS. REPUBLIC [1972] E.A.32, where it held that:-

“It is the duty of a first appellant court to consider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld”

The trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and this court is in dealing with this appeal obligated to give allowance for that.

THE ISSUES FOR DETERMINATION BEFORE THE COURT

a. Did the trial court err in in relying on the evidence of blood relatives of the complainant?

The law does not bar witnesses from testifying in favor of their relative. More often than not, offences are committed in the presence of relatives and it would be a serious miscarriage of justice to bar them from testifying. The complainant’s parents were not at the scene of crime but complainant’s mother’s evidence that appellant left her home in company of the appellant after which she returned and reported that appellant had defiled her is not controverted. I therefore find that the trial magistrate appropriately considered the evidence of the complainant’s mother.

b. Was complainant’s age proved?

As the exact age of the complaint for purposes of computing the applicable penal provision under the Sexual Offences Act, the Court of Appeal in J.W.A. v. Republic(2014) eKLR held that age of the victim is a matter of fact which could be proved by evidence other than birth certificate and age assessment report, and said as follows:

“The gist of the appellant’s appeal is that there is material contradiction in the age of the complainant and it is unclear whether she was 10 or 16 years old; that the prosecution did not produce a birth certificate or adduce medical or other cogent evidence to prove the age of the complainant; that the penalty for various offences under the Sexual Offences Act, 2006, is determined by the age of the complainant. It is our considered view that the age of an individual is a fact and the two courts below established the fact that the complainant was 10 years of age. The complainant testified that she was 10 years old; the medical report produced as Exhibit 1 signed by Dr. K. Malumbe who examined the complainant indicates she was born in 1989 and was thus 10 years old in 2009, when the offence was committed; the P3 Form tendered in evidence as Exhibit 2 shows that the complainant was 10 years old at the time of the offence. On our part, we see no reason to disturb the finding of fact made by the trial courts below and we are satisfied that the evidence on record shows that the age of the complainant was proved to be 10 years

Complainant’s mother testified that the child was born on 12. 4.10 as shown on her clinic card PEXH. 1. Further, the P3 form produced as PEXH. 2 shows the child’s age as 3 years. The offence was committed on 27. 4.14 when the child was 4 and not 3 years old. As observed inJ.W.A. v. Republic(Supra), the penalty for various offences under the Sexual Offences Act, 2006, is determined by the age of the complainant. Section 8 of the Sexual Offences Act under which the appellant is charged states as follows;-

(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.

From the foregoing; I find that evidence on record showing the child to have been 3 years has not caused the appellant any prejudice since the penalty would still have been the same even if the child was 3 and not 4 years as shown in the clinic card.

c. Did the doctor exculpate the appellant?

Evidence contained in the P3 form PEXH. 2 shows that the complainant’s hymen was broken. Granted, the evidence confirms the act of penetration which does not exculpate the appellant but on the contrary incriminates him.

d. Was the prosecution proved to the required standard?

The appellant conceded that he was well known to the complainant. He did not deny that he visited the home of complainant’s parents’ on the material day and left with complainant. The complainant is the only witness to the offence complained of. I have considered the provisions of Section 124 of the Evidence Act Cap 80 Laws of Kenya which provides for conviction on the evidence of a single witness in the following terms:

“Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”

In the case of Chila V Republic (1967) EA 722 at 273,the court held:

‘’The law of East Africa on corroboration in sexual cases is as follows. The judge should warn the assessors and himself of the danger of acting on the uncorroborated evidence testimony of the complainant, but having done so he may convict in the absence of corroboration if he is satisfied that her evidence is truthful. If no such warning is given then the conviction will normally be set aside unless the appellate court is satisfied that there has been no failure of justice’’.

The learned trial magistrate observed that the evidence by the medical officer corroborated the fact of defilement. The fact that the appellant had visited the complainant’s parents’ home and left with the complainant before she returned to report that she had been defiled is in my humble view incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. (See Simon Musoke v R, [1958] EA 715).

Decision

Appellant was sentenced to imprisonment for life. The sentenced imposed on the appellant is the one provided for under Section 8(2) of the Sexual Offences Act and I find no fault in the decision of the trial court. The upshot of this is that the appeal is dismissed and the sentence imposed on the appellant is upheld.

DATED AND DELIVERED THIS12thDAY OFOctober2017

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant - Felix

Appellant - Present in person

For the State - Ms. Wafula