[2022] KEHC 1472 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYAHURURU

CRIMINAL APPEAL NO. 8 OF 2020

(Being an Appeal from the Judgement of Hon J. Wanjala Chief Magistrate Nyahururu delivered on 14th June 2021 in Nyahururu S.O.A Case No. 56 of 2016)

EDWIN KIPKURUI RONO......APPELLANT

-VERSUS-

REPUBLIC............................RESPONDENT

JUDGEMENT

1. The Appellant was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act. The particulars stated that on the 5th December 2015 in Subukia Sub County within Nakuru County intentionally and unlawfully caused his genital organ namely penis to penetrate the genitalia organ namely vagina of LCK, a child aged 9 years.

2. He was also charged in the alternative with committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act.

3. The Appellant was convicted and sentenced to life imprisonment. Being aggrieved by the said conviction and sentence, the Appellant preferred the instant appeal on grounds that:

i. The trial magistrate erred in law and fact by failing to find that the victim’s evidence was untrustworthy and as such did not establish the offence of defilement.

ii. The trial magistrate erred in law and fact by failing to find that the prosecution evidence did not prove that the Appellant caused his genital organs to penetrate the genital organs of the victim.

iii. The trial magistrate erred in law and fact by failing to find that there was no medical evidence to corroborate the victim’s evidence of having been defiled on the alleged facts.

iv. The trial magistrate erred in law and fact by failing to find that the prosecution evidence had not medically connected the Appellant to the offence of defilement.

v. The trial magistrate erred in law and fact that the prosecution had proved the charge of defilement beyond reasonable doubt.

vi. The trial magistrate erred in law and fact in finding a conviction that was against the weight of evidence.

vii. The trial magistrate erred in law and fact by passing a harsh sentence under the circumstances.

4. Consequently, the Appellant prays that this appeal be allowed, conviction be quashed and sentence be set aside.

5. The brief facts of this case are that PW1, Milka Kosgei, a registered clinical officer testified that the victim was brought to hospital under the allegations that she was defiled by somebody well known to her on 5th December 2015. She examined her and noted that she had no bruises or injuries sustained on the neck/head, thorax/abdomen, upper and lower limbs. The survivor was brought to hospital five days after the alleged defilement and probable weapon causing the injury penetration.

6. PW1 made the following observations: - age of victim - 9 years, private parts examination- observed bruises and laceration on the external genitalia, the hymen was perforated. She noted that there was vagina discharge which was whitish and which has foul smelling and the labia minora and labia majora was reddish in colour and swollen.

7. It was PW1’s testimony that there was presence of vaginal whitish discharge and foul smelling. The urinalysis test showed numerous pus cells but there was no sperm. She asserted that you can’t find sperms after five days and after the girl urinates. Further, it was noted that the pus cells were whitish. High vaginal swab was done and it showed numerous pus cells. We did UDRL (syphilis) and it was negative. PITC (test for HIV) was non-reactive (negative). Bruises and laceration of the outer genitalia per vagina discharge whitish and foul smelling. Perforated hymen labia majora and labia minora were swollen,

8. She testified that she treated the girl twice and as per the P3 form her conclusion was that she was defiled and she had a sexually transmitted infection namely a urinary tract infection. PW1 produced the P3 form- Exhibit 1, treatment note dated 10/12/2015- Exhibit 2 (a), treatment card on 11/1/2016- Exhibit 2(b) and Post Rape Care form (PRC) dated 10/12/2015- Exhibit 3. She noted that defilement took place due to per vaginal discharge which causes foul smelling and the bruises and lacerations and the numerous pus cells and that the child was limping per the Post Rape Care form.

9. PW2, the victim gave unsworn evidence and testified that she was with her sisters when the Appellant approached them looking for her uncle K. He took her to K’s house and tied her mouth and hands and threatened her. The Appellant removed his clothes and unclothed her then laid her down on the bed. That he took his thing he uses too urinate and put it in hers that she uses to urinate. That she felt pain. That afterwards the Appellant threatened her and went away then she went home.

10. She stated that she told her mum days later and she that was taken to hospital and then they went to the police station and reported the incident. She identified the Appellant and stated that she sees him at home and that his home is near her home.

11. PW3, KK, the victim’s uncle testified that he knew the Appellant as a neighbor. That he saw her niece limping and then her mum told him that the Appellant had defiled her. He then went to look for the Appellant and found him at [Particulars Withheld. That they took the Appellant back home and questioned him about the incident. That the Appellant admitted that he had defiled the child in PW3’s house. He was taken to Pole Pole Police Post and later escorted to Subukia Police Station. He stated that when the victim was asked, she said that she was defiled in his house by the accused person and that is why he looked for the accused and took him to police.

12. PW4, RCK, the victim’s mother testified that on the material date she left her children home and when she returned from the posho mill, het children did not tell her anything. That on Wednesday she saw the victim walking with a limp on her right leg. That when she asked her what was wrong she did not tell her anything but upon further prodding, the victim finally narrated to her what the Appellant whom she identified as a neighbor, had done to her. That she took the victim to hospital and then to the police station.

13. She testified that she checked the victim’s private part when she told me what had happened to her and saw blood in her private part. That When they returned home the the child did not get well and that the Appellant had infected her with Gonorrhea. She identified the treatment notes.

15. Further, she stated that she continued taking the child to hospital until she was healed but sometimes she still complained of abdomen pain. That the accused was arrested on 11/12/2015 after running away from home. That he was arrested in [Particulars Withheld area and K is the one who found him and took him to the police.

15. PW5 testified that he was among the people that arrested the Appellant on 11/12/2015 and took him to the police. He denied that he had beaten the Appellant because of the alleged defilement.

16. PW6, the investigating officer testified that he interrogated and recorded statements from the victim, her mother and two other witnesses. That the mother and the child narrated how the victim was defiled by the Appellant. The Appellant was then arrested and after treatment and completion of the P3 form it confirmed that the child has indeed been defiled and the accused was charged. He stated that he relied on the statements he recorded and the P3 form, PRC form and treatment records from Subukia Sub County Hospital.

17. The investigating officer stated that he confirmed that he child was aged 9 years when the incident happened. He produced a notification of birth- Exhibit no. 4 that indicated that the victim was born on 25/12/2006.

18. The Appellant was put on his defence. He testified that on 11/12/2015 he was working in [Particulars Withheld area when at about 4. 00pm he was approached by 3 men i.e. KK, AC and VK who asked him if they could go home. That as they approached [Particulars Withhel]d area in the middle of the forest they met over with 5 boys and KK forced him to admit to whatever they told him. That they beat him until he declared to save his life. That he was also attacked when they reached Kennedy’s home until he lost his consciousness.

19. He testified that when he regained and opened his eyes, he was at AP Post Pole Pole. He was later taken to Subukia Police Station while injured and in pain. That he was then taken to hospital then charged with the present offence.

APPELLANT’S SUBMISSIONS

20. The Appellant’s counsel submitted that though the evidence of PW1 might to some extent indicate that there was defilement, it fell short of linking the Appellant to the said act. That PW1 did not examine the Appellant in order to carry out tests for purposes of ascertaining whether he has infections similar to those that the victim had. That there was no evidence to suggest that the Appellant had any infections or had sought treatment of any infections after the date of the alleged defilement. The Appellant reiterated that the police had a chance to cause the Appellant to be subjected to medical examination in order to ascertain if he has any sexual infection and failure to medically examine the Appellant was fatal to the prosecution case.

21. It was stated that the findings of PW1 upon examining the victim are not conclusive proof of the fact that she was defiled in an act that involved her vagina being penetrated by the genital organ of a male person. Reliance was placed on John Mutua Munyoki v Republic [2017] eKLR and Ian Bundi Kirunja v Republic [2020] eKLR.

22. The victims asserted that the victim had stated that on the alleged date of defilement, the Appellant had forcefully tied her hands, no injuries were noted 4 days after the said attacks thus raising doubts on the alleged circumstances before the alleged defilement.

23. Moreover, the Appellant averred that the victim did not mention at what point in time she was able to untie herself to enable her put on her clothes and then leave the room. That this lacuna creates more doubts to the alleged circumstances before and after the alleged defilement.

24. The Appellant submitted that the failure to call one Sandra to corroborate the victim’s testimony touching on the circumstances before and after the alleged defilement invites the court to presume that she would have given evidence adverse to the prosecution case. Reliance was placed on Republic v Robert Ochieng Owino [2011] eKLR.

25. It was stated that the Appellant also faced an alternative count yet nowhere did the victim give any evidence that would prove any indecent act on the part of the Appellant. Reliance was placed on Ahmed Abdalla Mohamed v Republic [2008] eKLR and Peter Ngari v Republic [2010] eKLR.

26. In conclusion, the Appellant urged the court to find that the Appellant was wrongly convicted and proceed to quash the conviction and sentence passed by the trial court.

27. Respondent’s as was not on record by the time of drafting this judgement.

ANALYSIS AND DETERMINATION

28. I have considered the grounds of appeal, the proceedings before the trial magistrate and the submissions. This being a first appeal. This court has a duty to evaluate the evidence, analyze it and come up with its own independent finding while bearing in mind that unlike the trial magistrate this court did not have an opportunity to see the witnesses and leave room for that. (See Okeno v Republic (1972) E.A 32. )

29. Section 8 (1) and (2) of the Sexual Offences Act states that:

1. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

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.

30. This being a case for defilement, what was to be proved are the ingredients of the offence of defilement which are: -

Age of the victim

Penetration

Identity of the perpetrator

31. (SeeDominic Kibet Mwareng v Republic[2013] eKLR & George Opondo Olunga v Republic [2016] eKLR).

32. As regards to the complaint’s age, the same was proved by Exhibit No. 4 i.e. the notification of birth that indicated that victim was born on 25/12/2006 therefore the victim was nine years old at the time the offence was committed.

33. According to Section 8 (1) of the Sexual Offences Act, the offence is committed if the child is aged eleven years or less. The victim was nine years. The prosecution discharged the burden to prove the age of the victim. (See Alfayo Gombe Okello v Republic (2010) eKLR)

35. With regards to penetration, Section 2 of the Sexual Offences Act defines penetration as:

“the partial or complete insertion of the genital organs of a person into the genital organs of another person.”

35. This position was fortified in the case of Mark Oiruri Mose v R [2013] eKLR when the Court of Appeal stated thus:

“…Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ.”

36. The Appellant’s appeal was grounded majorly on this limb. He argued that the trial magistrate erred in law and fact by failing to find that the prosecution evidence did not prove that the Appellant caused his genital organs to penetrate the genital organs of the victim. Further, he contended that the trial magistrate erred in law and fact by failing to find that there was no medical evidence to corroborate the victim’s evidence of having been defiled on the alleged facts and that there was insufficient evidence to link him to the instant offence.

37. On the other hand, the prosecution brought forth evidence to demonstrate that penetration had indeed occurred. PW1 who produced the P3 form, testified that when she examined the victim she observed bruises and laceration on the external genitalia, the hymen was perforated. She noted that there was vaginal discharge which was whitish and foul smelling and that the labia minora and labia majora was reddish in color and swollen. That the urinalysis test showed numerous pus cells but there was no sperm. However, she asserted that you can’t find sperms after five days and after the girl urinates. Further, it was noted that the pus cells were whitish. High vaginal swab was done and it showed numerous pus cells.

38. She testified that she treated the girl twice and as per the P3 form her conclusion was that she was defiled and she had a sexually transmitted infection namely a urinary tract infection. She noted that defilement took place due to per vaginal discharge which causes foul smelling and the bruises and lacerations and the numerous pus cells and that the child was limping per the Post Rape Care form.

39. In her testimony, PW2 i.e. the victim from the trial court’s proceedings recounted that:

“He tied my mouth and hands. He told me that if I tell anyone he will kill me. We were inside Kennedy’s house. Edwin removed my clothes. He unclothed me. I was wearing a panty. He removed my panty. He also took off his clothes. He removed his long trouser. He laid me on a bed of K. He lay on me. He took his thing he uses to urinate and he put it in mine that I use to urinate. He inserted inside my thing I used to urinate. I felt pain.”

40. It is my considered view that the fact of penetration was proved by the testimony of the victim. The court has to consider the evidence of the victim and if it is satisfied that she is truthful and credible, it need not look for medical evidence. Notwithstanding, the medical evidence also corroborates the victim’s account that penetration did indeed occur. The sum effect of the aforementioned evidence does not raise any ounce of doubt as alleged by the Appellant as to whether penetration occurred. I agree with the learned trail magistrate’s finding in her judgement that:

“The child was indeed defiled. She was taken through treatment for a long period before she got well. PW4’s evidence shows that she had to take child to hospital for some time because she had an infection. The infection was noted by PW1 the clinical officer who treated the child. The P3 form and PRC form and treatment notes shows that the child had bruises on the vagina and foul smelling discharge from her vagina. They hymen was perforated. She had an infection. Her labia majora and labia minora were swollen and reddish.”

41. Therefore, in the circumstances it is my finding that the second element of the offence which is penetration was proved beyond reasonable doubt.

42. With regard to the third element i.e. identity of the defiler, the Appellant was a person who was well known to the victim and her family. The victim identified the Appellant by stating that she sees him at home and that his home is near her home. Both PW3 and PW4 identified the Appellant as a neighbor to the victim’s family.

43. I concur with the learned trial magistrate in her judgement where she stated that:

“I am satisfied beyond reasonable doubt that the prosecution has proved that the victim was defiled by the accused person who was well known to her as they were neighbors and the accused person used to visit their home. He was a friend to PW3 her uncle in whose house he defiled the minor.”

44. All in all, I conclude that all the elements of the offence for which the Appellant was convicted and sentenced were proved to the required standard. I have no basis for interfering with the same.

45. This now brings us to the issue of whether the sentence is harsh and excessive. Under Section 8(2) of the Sexual Offences Act, where the victim is less than eleven years, upon conviction, one is liable to be sentenced to life imprisonment. Having considered the circumstances surrounding this offence I find that the sentence was within the law. The learned trial magistrate exercised her discretion judicially in the circumstances of this case. I find no reasons to interfere with the sentence.

46. In conclusion, I find the appeal to be wholly unmerited and the same is hereby dismissed.

DATEDAND SIGNED AT NYAHURURU THIS 10TH DAY OF MARCH,2022

………………………………..

CHARLES KARIUKI

JUDGE