[2017] KEHC 379 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL APPEAL NO. 247 OF 2009

DOMINIC MULUSIA ……………......................APPELLANT

VERSUS

REPUBLIC…………………………………………….....STATE

(Appeal from the Judgment of the Chief Magistrate’s Court at Nakuru Hon. C. A Otieno – Resident Magistrate delivered on the 20th August, 2009 in CMCR Case No.238 of 2008)

JUDGMENT

The appellant DOMINIC MULUSIA has filed this appeal challenging his conviction and sentence by the learned Resident Magistrate sitting at Nakuru Law Courts.

The appellant had been arraigned in court on 30/12/2008 facing a charge of DEFILEMENT CONTRARY TO SECTION 8(1)(3) OF THE SEXUAL OFFENCES ACT. The particulars of the charge were that

“On the 18th day of December, 2008 at [particulars withheld] area in Nakuru District within Rift Valley Province unlawfully and intentionally defiled MN aged 14 years”.

In addition the appellant faced an alternative charge of INDECENT ACT WITH A CHILD CONTRARY TO SECTION 11(1) OF THE SEXUAL OFFENCES ACT.

The appellant pleaded ‘Not Guilty’ to both charges and his trial commenced on 19/2/2009. The complainant who was a minor was taken through a voire dire examination. Thereafter she was found mature enough to give sworn evidence. The complainant told the court that on 18/12/2008 at about 8. 00pm she was in the family home preparing supper. She moved to the living room to take a bowl from the cupboard.

Suddenly the complainant was grabbed by a hand and her nose and mouth were covered. The man pulled her to a bed in the sitting room and then forced her to lie down. He lay on top of her and removed her panty then defiled her. After the act the man ran away.

The complainant later reported the incident to her parents and identified the appellant who was their neighbour as the man who had defiled her. The appellant was then arrested and charged.

At the close of the prosecution case the appellant was found to have a case to answer and was placed onto his defence. He gave an unsworn defence in which he denied having defiled the child.

In a case of defilement the prosecution is required to prove beyond reasonable doubt the three ingredients of the offence. These are

(i) The fact of penetration

(ii) The identity of the perpetrator and finally

(iii) The age of the victim

In this case the complainant told the court that she was inside the family home preparing supper at 8. 00pm. As she moved to the living room to collect a bowl from the cupboard a man sneaked into the house and grabbed her. The man covered her mouth to prevent her calling for help. He then pulled her onto a bed in the living room and defiled her.

In her evidence at page 10 line 1 the complainant narrated the sequence of events as follows

“Suddenly someone got hold of my mouth and nose from behind. He grabbed me to a bed where we usually sleep which is in the sitting room. He then lay on top of me ……… After lying on top of me he removed my panty and also removed his trouser. He put his penis inside my private part. I felt a lot of pain, I started bleeding……”

The complainant here has given a graphic account of what happened to her. The complainant was but a child. She had no reason to claim that she had been defiled if no such event had occurred.

PW2 NW was the sister of the complainant. She told the court that on the material day she was outside their house plaiting the hair of her friend. After finishing PW2 entered their house and found a man lying on top of her sister. PW2 began to cry. Later when their parents returned home PW2 reported the incident to them.

Thus this is one of the rare cases where there was an eye witness to the act of defilement. PW2 was clear that she saw a man lying on top of her sister on the bed. Why else would an adult man be lying on top of a child other than for the purpose of defiling her.

PW4 DR. SAMUEL ONCHERE was a medical officer at Nakuru PGH. He told the court that he examined the complainant on 22/2/2008. He noted that her hymen was broken. In a child of this age a broken hymen is clear proof of a sexual assault. PW4 filled and signed the P3 form which he produced in court as an exhibit P exb 1.

From the evidence on record I am satisfied that the fact of penetration has been proved beyond reasonable doubt.

The next issue requiring proof is the identity of the perpetrator. The complainant identified the appellant as the man who defiled her. Although the incident occurred at 8. 00pm the complainant states that there was a chimney lamp in the room which enabled her to see and identify her assailant. In her evidence at page 10 line 3 the complainant says

“The person who lay on top of me is in court. Accused person identified. There was a chimney lamp in the house and I was able to identify the accused person properly and clearly. The accused person is our neighbour at [particulars withheld]”

PW2 the sister to the complainant also identified the appellant as the man whom she saw lying on top of her sister. PW2 states at page 15 line 17

“The person I found lying on top of my sister on that day is in court. Accused identified. It was at night but there was a chimney lamp and I was able to identify the accused person. The accused person is our neighbour at [particulars withheld]….”

Both witnesses though young children gave clear and concise evidence. They remained unshaken under cross examination. They both explained the source of light which enabled them to see and identify the appellant. The two children confirm that the appellant was not a stranger to them. He was a man they knew well as he was their neighbour at [particulars withheld]. Both PW3 SNKthe complainant’s mother and PW5 AWW the father of the complainant both confirm that they knew the appellant well as a neighbour.

Thus there is clear evidence of recognition which in the case of ANJONONI & OTHERS Vs REPUBLIC was held to be ‘more satisfactory more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other’.

In the case of PW2 her evidence is that after the incident she actually spoke to the appellant. She stated that the appellant questioned her about what she had seen PW2 retorted that she had seen him lying on top of her sister. It was PW2 who reported the incident to their parents and named the appellant as the perpetrator. At no time did any of the two waver in their identification of the culprit.

The witnesses were very young children who had no reason or motive to frame the appellant. In his defence the appellant denied having defiled the complainant. He stated that he had only gone to that home to purchase charcoal. However I note that the appellant did not while cross-examining any of the witnesses put to them that he had gone there to buy charcoal. This was clearly an afterthought. The defence of the appellant is a mere denial and I do dismiss the same.

Based on the evidence on record I am satisfied that it has been proved beyond reasonable doubt that it was the appellant who defiled the complainant.

The final issue requiring proof beyond reasonable doubt is the age of the complainant. In any case of defilement the age of the victim is a critical issue as it is that age which will determine the sentence to be imposed if the court returns a verdict of guilty. In the case of ELIAS KAINGU KASOMO Vs REPUBLIC Crim Appeal 504/2010,the Court of Appeal held as follows

“Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved in the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed upon conviction will be dependent on the age of the victim….”

Ordinarily the age of the child may be proved by documentary evidence e.g Birth Certificate, Immunization Card, School Document or a Baptism Card. In the case of RICHARD WAHOME Vs REPUBLIC [2014] eKLR it was held that the testimony of a parent regarding the age of their child will also suffice as proof of age.

In this case the complainant told the court that she was 14 years old. However no documentary evidence was adduced to prove her age. No age assessment was done. I have also anxiously perused the evidence of PW3 and PW5 the parents of the complainant. Nowhere did they state the age of their daughter nor did they state the year of her birth. Thus there is no evidence to support the complaint’s claim that she was 14 years old. The learned trial magistrate sought to rely on the P3 form as proof of the age of the child. However, the doctor did not conduct an age assessment on the complainant. The age which is recorded in the P3 form is simply what the child told the doctor. Thus the P3 form is not proof of age of the child. Therefore in the absence of concrete proof of the age of the victim a charge of Defilement cannot stand. For this reason I hereby quash the conviction of the appellant on the charge of defilement.

Having said that I am satisfied that the facts of the case do certainly prove the alternative charge of Indecent Act with a child. I therefore substitute a conviction under Section 11(1) of the Sexual Offences Act.

Consequently the sentence of twenty (20) years is set aside and in its place I impose upon the appellant a sentence of fifteen (15) years imprisonment. The sentence to run from the date of conviction in the trial court.

Dated and Delivered in Nakuru this 10th day of November, 2017.

Appellant in person

Mr Motende for DPP

Maureen A. Odero

Judge