[2022] KEHC 12440 (KLR)

Cheruiyot Victor v Republic (Criminal Appeal 43 of 2019) [2022] KEHC 12440 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12440 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal 43 of 2019

RN Nyakundi, J

July 14, 2022

Between

Cheruiyot Victor

Appellant

and

Republic

Respondent

Judgment

Coram: Hon. Justice R. NyakundiMr Mugun for the state 1The appellant herein was charged with the offence of defilement contrary to section 8(1) of the Sexual Offences act. The particulars of the offence are that on the 13th day of June 2017, at [Particulars withheld] village within Uasin Gishu county, the accused caused his genital organs to penetrate into the genital organ of MC, a child aged 12 years old.

2The accused pleaded not guilty and the trial proceeded to full hearing where the prosecution called six witnesses whereas the accused elected to rely on sworn evidence and did not call any witnesses.

3PW1, the victim, testified that on June 13, 2017 at 10. 00pm, she was at her cousins’ house with MC and JC sleeping. She woke up and found the appellant had removed his clothes and inserted his penis into her vagina. MJ (PW3, had escorted a visitor to the house and found the accused in the act. She pulled him away and called AP officers. She knew the accused as he was her neighbour.

4PW2, Calvin Pengo from Ngeria AP post testified that on the material date he heard commotion in his neighbours’ house while at home and proceeded to the scene. He found the complainant crying in the room with women screaming and the accused. He was informed that the accused had defiled the complainant and he arrested him.

5PW3, MJ testified that on the material darted she had left with a cousin to go and bereave at a neighbours’ house and was returning to her house. She found the accused sleeping on the floor half naked with the children. She screamed and the police came and arrested the accused.

6PW4, JC testified that on the material date she had gone to mourn at a neighbours’ house with PW2. When they returned to PW3s house they found the accused sleeping with the children and screamed. The minor indicated that she had been defiled by the accused.

7PW5, Taban Lilian produced the P3 form that had been filled by Dr. Temet who examined the complainant after the incident. She confirmed that the report indicated that defilement had occurred.

8PW6, Corporal Victor Yamumbi testified that he was on duty on 14th June 2017 at 3am when the accused was brought by two AP officers. They narrated that he had been accused of defilement. He then took the minor to hospital where the P3 form was filled and the same confirmed that there had been defilement.

9The appellant was put on his defence and he testified that on the material date he had travelled back to his house and when he reached home at 1. 40am he heard shouts from drunk people outside his house. He heard a knock at his door and saw a familiar lady when he peeped through the window. He refused to open for her and she went away. After 10 minutes he heard people knocking at his door and opened the door. He was attacked by the people and the Aps came to his rescue. He was then taken to Mugundoi Aps camp and he was accused of defiling the complainant. He denied the offence.

10Upon hearing the testimony from all the witnesses and putting the accused person on his defence, the trial court found him guilty and sentenced him to 20 years’ imprisonment.

11Being dissatisfied with the decision of the trial court he instituted the present appeal vide a petition of appeal dated and filed on March 15, 2019. The petition is based on the following grounds;1. That the trial magistrate erred in law and facts by failing to note that the reception of PW1 testimony was not justified at all since the mandatory provisions of section 19(1) were contravened.2. That the trial magistrate erred in law and facts by convicting (me) yet the age of the complainant was not proved3. That the trial magistrate erred in law and facts by convicting appellant on prosecution witnesses’ evidence which was full of contradictions.4. That the trial magistrate erred in law and facts by failing to note that the doctor that examined and treated the complainant was not summoned to testify.5. That the trial magistrate erred in law and facts by failing to call crucial witnesses that were mentioned adversely by prosecution witnesses.

12The appellant filed submissions in support of the appeal. he submitted that the prosecution failed to establish a prima facie case against him while he maintained his innocence thereby denying him the right to a fair trial. He cited the case of Albanas Mwasia Mutua vs republic (2006) eKLR and asked the court to find that the prosecution failed to prove their case. He referred to article 27() (2) and (4) and contended that he was not given a fair trial and the court did not consider his prayers including failure to grant adjournments to home when he was unwell. He also claimed that he was discriminated against in the granting of bail.

13It was the appellant’s case that PW1 was not a credible witness, and that she kept changing her statements. She said she screamed for help in examination in chief but in cross examination she said that she did not scream because he was too strong. He called attention to the P3 and stated that it was contradictory and maintained that PW2s statements were contradictory with regards to the number of victims and the date when the incident occurred.

14The appellant submitted the failure to call crucial witnesses; Betty and Vano contravened the provisions of section 150 of the Criminal Procedure Code and cited the case of John Kenga vs Republic; Criminal Application No. 1126 of 1984 in support of this submission. According to him, the only element that was clear was the age of the complainant. On penetration, the medical report was inconclusive as the offence occurred on June 13, 2017 and she was examined on June 15, 2017. A healed hymen was observed and the breaking could have been caused by physical activities. The identification was obvious and should not have been relied on. He cited the case of Wanga vs Republic (1989) eKLR and R vs Turnbull (1976) 3ALLER in support of his submission. he contended that the P3 form held no water as it did not state the age of the injuries and stated that she had a healed hymen and fresh injuries which are two distant things. The accused stated that he was arrested before completion of investigations. Further, that PW5 appeared in court for Dr. Janet did so as a formality. She contradicted herself by stating that she observed no injuries while stating the age of the injuries at the same time.

15The applicant contended that the conviction was based on a pre-existing grudge and was therefore unsafe. He asked that the court find that the appeal has no merit.

16There are no submissions on record for the respondent.

17Upon perusing the appeal and the submissions I have identified the following issues for determination;

Whether the prosecution failed to prove its case to the required standard 18Section 8(1) of the Sexual Offences Act provides;1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

19The key ingredients of the offence of defilement as held in George Opondo Olunga v Republic [2016] eKLR are; proof of the age of the complainant,

proof of penetration and

proof that the appellant was the perpetrator of the offence.

20The age of the complainant was proven by way of a child health card which was produced as exhibit 1 by PW4, the mother to the complainant. Penetration was also proven by the medical evidence that was produced by PW3, the clinical officer who examined the complainant on 14th June 2017. She concluded that the complainant had been defiled. The evidence of the complainant being a minor needed no corroboration. Section 124 of the Evidence Act makes this quite clear:

21Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him.

22Provided 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 and 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.

23Further, the evidence of the complainant was corroborated by the evidence of PW3 who found the accused with the victim sleeping on the floor and the evidence of the clinical officer. I find that the prosecution proved the offence of defilement to the required standard.

24The appellant has failed to convince this court that there is any reason as to why the decision of the trial court should be set aside. The appeal is hereby dismissed.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 14THDAY OF JULY, 2022. ............................R. NYAKUNDIJUDGEIn the presence of:-Mr MugunAppellant