[2022] KEHC 9945 (KLR)

Chitwa v Republic (Criminal Appeal 44 of 2019) [2022] KEHC 9945 (KLR) (6 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9945 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal 44 of 2019

PJO Otieno, J

July 6, 2022

Between

Ronald Kuya Chitwa

Appellant

and

Republic

Respondent

(Being and appeal from the original conviction and sentence in Vihiga Principal Magistrate’s Court Criminal Case No. 44 of 2017 by J. A. Orwa, PM, dated 4/7/2018))

Judgment

1. The Appellant was charged, tried and convicted of the offence of defilement contrary to Section 8 (1) and (4) of the Sexual Offences Act. The charge sheet alleged that on or about the November 18, 2017 at [Particulars Withheld] area within Vihiga County, he intentionally and unlawfully caused his penis to penetrate the vagina of RA a child aged 16 years. Upon conviction he was sentenced to serve an imprisonment term of 15 years.

2. In its Judgment convicting the appellant, the trial court did acknowledge the ingredients of the offence of defilement and sought to scrutinize the proof of each before coming to the conclusion that the victim was aged 16 years 6 months, that the victim genitalia had indeed been penetrated and that it was the appellant who was the penetrator.

3. That Judgment aggrieved the appellant who then initiated the instant appeal and set out grounds of appeal to the effect that PW1 was allowed to testify under oath when she was mentally challenged and thus incompetent to give such evidence and that his sworn evidence in defense was never given due consideration. Having done so in the petition of appeal, in the written submissions filed and served other grounds were urged. I consider that to be wholly acceptable before a first appellate court because the court is bound to look at the entire record and to make a determination based on the evidence on record. This court’s leverage is very wide and not confined to only the issues raised by the appellant.

4. In executing the court’s mandate on a first appeal, I have had the benefit of reevaluating the evidence tendered by the six prosecution witnesses and the two witnesses from the defence, the Judgment and the submissions filed by the appellant.

5. Having done so the court appreciates the issues for determination in the appeal to be whether the duty on the prosecution to prove the case beyond reasonable doubt was discharged and whether the resultant sentence imposed was appropriate.

6. Before I delve into resolution of the issues, a rehearsal of the evidence would suffice. The complainant gave evidence as PW3 and told the court that on the November 18, 2017 she was fetching firewood at about 8 a.m. when somebody approached her held her, removed her dress threw her to the ground and inserted his penis on her vagina. She started bleeding from her vagina and a man approached and rescued her from the scene by taking her to a nearby security office where the police later came and escorted her to the hospital for treatment. She showed the court the dress she had on that day as well as a biker and pant with blood stains. She identified by pointing at the appellant to have been the defiler.

7. In cross examination, the witness confirmed to court that she met the appellant for the first time that day at Maseno area and that it was the appellant who had removed her pant and biker and inserted his penis on her vagina. The clinician gave evidence as PW1 and told the court that he is based at Emuhaya Sub County hospital and the person who completed the P3 form for the victim aged 16 years in the matter.

8. On examining her, the witness observed that the victim had blood stained white cream pant, orange school uniform and black biker. The victim looked disturbed and was a student at a school for the mentally challenged.

9. On further examination, the labia had bruises, the hymen was torn, with additional tear on both external and internal aspects on the perineum of the vagina with active bleeding on the vaginal course. Laboratory tests conducted on samples taken revealed a lot of blood cells in the urine a sign of bleeding but the HIV and pregnancy tests were negative.

10. The victim was then put on medication for pain to stop pregnancy and prevent HIV infection. She then produced the P3 as Exh.P1 (b) and treatment book as Exh.P1 (a) while PRC form was produced as Exh.P2.

11. In cross examination he admitted that the appellant was seen at Emuhaya Sub County hospital on November 18, 2017as shown by a treatment book shown to him.

12. PW2 was a security officer at Ebukhaya Hearing and Impairment Institution (Ebukhaya Special School) who was cutting grass on the material day at Maseno University compound. He recalled having seen the appellant and a lady emerging from a nearby forest. The man on seeing the witness took off and left the lady seated on the ground with blood flowing from her legs and the clothes were blood drenched. The girl who turned out to the victim told the witness that the boy had gone into the forest to bring her firewood. Soon the boy was back with his clothes also blood stained. The girl then reported to him that the boy had inserted his penis into her vagina by force and he thus arrested the boy and handed him, and the girl, over to the security personnel at the Maseno University. He identified the clothes the two were wearing and showed what he considered blood stains on them and confirmed having seen the appellant for the very first time and identified in the dock as the person he had arrested. He added that the came to learn that both the victim and the appellant come from Ebusakhami.

13. When cross examined, the witness told the court that he saw them at about 100 metres away and that it was the victim who had told him that the appellant had defiled her before leaving for the forest to bring for her firewood.

14. In re-examination he said that he arrested the accused after he brought firewood for the girl.

15. The fourth witness was JO, father to the victim, who said that was on the material day at home when one David, PW3 approached him and inquired if the victim was at home and he answered in the negative. The said David then told him that the victim had been defiled and rescued by some people at Maseno University. He proceeded to the scene but did not get her then went home and the victim was escorted home by the police officers. When the victim reached home her clothes were blood stained. He then produced the victim’s immunization card which showed the victim was born in 2001. He was shown the suspect for the first time at the police station and identified him to have been the person at the dock.

16. In cross examination he told the court that the victim had left home at about 8 a.m. to go and fetch firewood, was defiled in the forenoon and reported that it was the appellant who had defiled her.

17. Sospeter Meso, PW5, was a security guard employed by Bedrock Security Limited and stationed at Maseno University doing patrol duties. While on such duties on the material date, he saw an elderly man holding a young man and a lady was following them. The elderly man called him and told him that the young man had defiled the lady and that he should book the incident in the security book. The lady then told the witness that she had been defiled by the young man and he noticed that there was blood flowing down her legs. He identified to court the dress the girl was putting on and the jacket, wind breaker, the young man was putting on. He identified the young man as the accused then sitting at the dock. When cross examined, the witness told the court that he saw the appellant for the first time on the material day and that the victim told him that she had been defiled by the appellant. He concluded that there are several gaps on the perimeter fence of the villa farm and he did not see the complainant access the farm prior to the arrest of the appellant.

18. The last witness, PW6, was No. 91651 P.C. Phoebe Owang, the investigating officer and based at Maseno Police Station, who received the report of defilement from PW5 who had escorted the appellant to the police station. The witness proceeded to the scene, recorded witness statements then escorted the minor and suspect to Emuhaya Sub-County hospital for examination and issued the minor with P3 form. The witness recounted what the victim had told him about the incident and produced the jacket belonging to the appellant and the clothes of the victim as exhibits which were all blood stained just like he produced the immunization card showing the child was born on April 21, 2002 and was therefore aged 16 years as at the date of the incident. He identified the appellant at the dock as the person escorted to the police station by PW5 and handed over to her.

19. In cross examination he told the court that he took a statement from an eye witness who saw the appellant emerge from the forest in the company of the girl and that he never visited the appellant’s home because there was no need for such visit.

20. On his defence, the appellant told the court that he hails from Ebusakami and a milk-vendor. That on the material day, he was at the Maseno University farm where he met PW2 who asked him if he knew what he had done, to which he responded in the negative but PW2 told him to follow him and both went to the sentry box of Maseno University where they met Sospeter, PW5. Later he was escorted to Luanda Police Station and charged with the offence which he denied ever committing. When cross examined he told the court that he was cutting grass at the University farm when he saw the victim who had been allegedly defiled. He then said that he saw the victim in court for the first time pointing out that he was 20 years old and was arrested on November 28, 2017.

21. The appellant called Doreen Amimo, DW2 as his witness who told the court that she was home on the material date when, the appellant, who is her son, called her to say that he had been arrested on the basis of having defiled a lady. The witness proceeded to the scene, confirmed that the victim had indeed been defiled but not by the appellant.

22. As said before, the task of the court after review of the entire record is to determine whether or not the conviction reached was based on a case proved beyond reasonable doubt and if the sentence meted out is lawful and appropriate.

23. It is to this court not in doubt that the victim was defiled, that emerge from the words of all the witnesses who saw her in blood stained clothes and the evidence of PW1, the Clinician, who established that her vagina had been penetrated. It is also not in doubt that by the immunization card produced as Exh. P.Exh 7, the victim was aged between 16 and 18 years. The court therefore finds and holds that there was sufficient proof that the victim was a child and was penetrated on her vagina. That the court finds to have been satisfactorily proved beyond reasonable doubt.

24. Even the identity of the person who penetrated and thus defiled the victim presents no difficulty. The appellant in his evidence admitted having been at the scene where the incident took place, and was arrested and handed over to the police. There was no break in the chain of events to invite the doubt as to who was actually found with the defiled girl. The court find that all the ingredients of the offence of defilement were sufficiently proved and so proved beyond reasonable doubt and therefore the conviction was safe and merited. On that basis there is no justification to interfere with the decision of the trial court. The appeal on conviction is thus dismissed.

25. One of contention taken by the appellant was that the victim having been mentally challenged was incompetent to give evidence under oath. The law under Section 125 of the Evidence Act is that it is at the discretion of the court to determine whether a mentally challenged person is prevented from understanding and giving rational answers to questions put unto them. At trial, there is no record by the court that the victim was such incapacitated when she gave evidence. In the Judgment, that issue was exhaustively dealt with by the trial court and a conclusion was made that the witness was coherent in her averments to court and therefore was not prevented from understanding questions put to her. In the court’s own words:-“It is on record that RA is a pupil at special school as she is a person living with disability.By dint of Section 125 (2) of the Evidence Act and 31 (2) of the Sexual Offences Act a witness is deemed incompetent to testify if his tender age, old age or physical disability is likely to interfere with her/his ability to answer the questions put forth to him/her rationally. If that is the case the court can move suo motto and bring on board an intermediary or can be moved through the Prosecution. The underlying factor herein is the intellectual ability of a witness to communicate effectively in the course of trial in cases of old age, tender age or mental impairment as was held in the case of M.M v. Republic [2014] (supra).The essence of inviting an intermediary to testify in this case was if RA’s intelligence could be interfered with by virtue of her disability in the course of her testimony. RA appeared in Court and testified on oath. She was cross examined at length by DW1. RA was calm in her evidence in chief, cross examination and re-examinations. She was firm and referred to DW1 as the one who defiled her on November 18, 2017. She repeated the narrative to PW2, PW3, 5 and 6 when confronted with the question of who defiled her. She described her genitalia (vagina) as the object used for urination which was penetrated by DW1 through his object used for urination (penis). RA stated that she knew DW1 as her neighbour at Emukuya, Ebusamba. In cross examination RA stated that she saw DW1 for the first time on November 18, 2017 but was firm that DW1 removed her pant, biker and inserted his penis in her vagina (the object she uses to urinate). That it is DW1 who pulled her to the ground and inserted his penis in her vagina.”

26. The court records the excerpt to say that the trial court found the witness coherent and with an unimpaired intellect on account of her mental challenge. The court upholds the finding and reasoning by the trial court and discerns no reason to interfere with the decision to accept the evidence. However, even if the evidence was to require corroboration it would presents no challenge to the conviction because the evidence of the victim was buttressed by other witnesses which then bring out the prosecution’s case as cogent and unassailable and proved beyond reasonable doubt.

27. Lastly there arises the question of sentence which even when not made a ground of appeal, the court is entitled to interrogate within its mandate as a first appellate court.

28. It is of note that the trial court called for and was availed a presentence probation officer’s report. That report gave out the poor background of the appellant and his struggles with life including the fact that he was a first offender and that both community and the family pleaded for leniency in sentencing.

29. In dealing with a report the trial court recorded having noted the contents of the report including the fact that the Accused was remorseful. The trial court equally noted that the appellant had all along been in custody before imposing the sentence of 15 years. Even though matters of sentence go to the discretion of the court, here there was the statutory dictate that the period taken in custody pending trial be not only taken into account but specifically discounted from the entire sentence. I do find that in failing to state that the sentence be computed from the date of first appearance, the trial court erred.

30. Secondly, criminal justice has an array of objectives over and above deterrence. Indeed it is a grave matter to molest a disabled minor. However the age of the appellant and the need to help him be a better citizen should have equally been considered. I hold that no consideration was given to the age and personal circumstances of the appellant. Indeed if he was a repeat offender consideration would have been definitely different. He was not. Having duly considered the sentence imposed and the probation officers report availed to court I do consider that a little leniency is due to the appellant. I have had the benefit of looking at the report filed in the appeal which described the appellant as a prisoner of good conduct and who the community and family both vouch for him to get a non-custodial sentence.

31. Taking into account that since conviction he has served a period of more than 3 ½ years in custody, I do consider him to merit being given a chance on probation for a period of three (3) years to help him consider his ways, retract his misses and with the help of family, community and after care services, integrate into society. The appellant is therefore committed to a probation order under the County Probation Officer for the three (3) years during which time he shall respect any lawful directions by the probation officer as may be necessary to help him integrate in society including taking up acquisition of life skills.This Judgment be served upon the County Probation Officer, Kakamega.It is so ordered.

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