[2023] KEHC 25180 (KLR)

EM v Republic (Criminal Appeal E146 of 2022) [2023] KEHC 25180 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25180 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E146 of 2022

LW Gitari, J

November 9, 2023

Between

EM

Appellant

and

Republic

Respondent

Judgment

1. The Appellant was charged with the offence of incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between October 2020 and 18th June 2021 at Igoji Maxwel in Imenti South Sub-County within Meru County, the Appellant intentionally and unlawfully caused his penis to penetrate into the vagina of BK, who was to his knowledge his sister.

2. The Appellant denied the offence and after full trial, he was found guilty, convicted and sentenced to serve 10 (ten) years imprisonment.

3. Aggrieved by the said decision, the Appellant instituted the present appeal based on the following grounds:a.That the learned trial magistrate erred in law and fact by failing to note that the voir dire examination was not properly conducted since there was no finding that the complainant (PW1) understood the importance of giving evidence on oath.b.That the learned trial magistrate erred in law and fact by failing to note that the complainant was forced to testify against the Appellant, since she told court she was not aware if the Appellant was her brother.c.That the learned trial magistrate erred in law and fact by failing to note that there was need of DNA test to prove the case beyond reasonable doubt.d.That the learned trial magistrate erred in law and fact by failing to find that the matter falls under Section 8(5) of the Act.e.That the learned trial magistrate erred in law and fact by failing to find that the whole case against the Appellant was based on suspicion which the same cannot form a basis for a conviction.f.That the learned trial magistrate erred in law and fact by failing to find that the clinical report does not support the allegation of defilement.g.That the learned trial magistrate erred in law and fact by convicting the Appellant to serve 10 years’ imprisonment without supportive evidence.h.That the learned trial magistrate erred in law and fact by dismissing the Appellant’s defense without giving cogent reasons for dismissing it.

4. The appeal was canvassed by way of written submissions which I have summarized hereunder.

The Appellant’s Submissions 5. It was the Appellant’s submission that the learned trial trial magistrate erred by failing to properly conduct a voir dire examination of the complainant and that such failure was fatal to the entire prosecution’s case.

6. It was further the Appellant’s submission that the evidence touching on penetration was insufficient to sustain a finding on the Appellant’s conviction. That while a DNA test was not mandatory in sexual offences, it was necessary in this case in order to prove the prosecution’s case against him.

7. Finally, it was the Appellant’s submission that the sentence meted against him was erroneous considering that it was the failure of the parents to make him aware that he was the complainant’s brother.

8. The Appellant thus urged this Court to allow his appeal by quashing his conviction, setting aside the sentence meted aginst him and setting him free.

The Respondent’s Submissions 9. It was the Respondent’s submission that they proved their case against the Appellant beyond reasonable doubt. Citing the case of GMM v. Republic, Kiambu High Court Criminal Appeal No. 39 of 2018, the Appellant submitted that the ingredients for the offence of incest and attempted incest are: knowledge that the person is a relative and penetration or indecent act. It was the Appellant’s submission that there was sufficient evidence that the Appellant and the complainant lived together as siblings and were both aware of their family relationship. Further, that the findings from the medical examination of the complainant revealing that she had a broken hymen and was 32 weeks pregnant was proof of penetration and that the complainant positively identified the Appellant as the perpetrator.

10. On the issue of the whether the trial court considered the Appellant’s defence, it was the Respondent’s submission that the Appellant did not controvert the evidence given by the prosecution witness and that his defence was correctly dismissed as an afterthought.

11. Finally, on the issue of the sentence meted out against the Appellant, the Respondent submitted that the trial court took into consideration the mitigation of the Appellant and found him not being remorseful. The Respondent thus urged this Court to dismiss the instant appeal.

Issues for Determination 12. I have considered the grounds of appeal as well as the submissions of the parties. In my view, the main issues that arise for determination are:a.Whether the trial court properly conducted the voir dire examination of the complainantb.Whether the prosecution proved its case beyond any reasonable doubt;c.Whether the trial court erred in convicting the Appellant to serve 10 years imprisonment.

Analysis 13. This is a first appeal. The law is well settled that the first appellate court has a duty to re-evaluate the evidence adduced before the trial court, analyse it, and come up with its own independent finding. The court is however supposed to make allowance for the fact that the trial court had the benefit of seeing and hearing the witnesses to access their demeanour. In Kiilu & Another vs. Republic [2005] 1KLR 174 the Court of Appeal stated that:“1. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.2. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”See also Okeno vs. Republic [1972] EA 32 on the same subject.

14. Guided by the above authorities, I shall now re-analyse the respective cases of the parties.

The Prosecution’s Case 15. The complainant herein, BK, testified as PW1. It was her testimony that between October 2020 and 18th June, 2021, he called the Appellant to her home where she used to stay with her grandmother. That she engaged in sexual intercourse with the Appellant and that in 16th June, 2021, her teacher took her to hospital where tests were done on her and it was revealed that she was pregnant. Further, that the Appellant is the father of her child and that later, she came to know that the Appellant was her brother.In cross-examination, the complainant told the court that she did nto know that the appellant was his brother and further that it was his father who forced her to record the witness statement.

16. PW2 was Seberina Kaimatheri, clinical officer at Kanyakine Sub-County Hospital. She attended to the complainant and filled the P3 form. According to her, the laboratory tests showed a degree of “grievous harm”. That the complainant’s hymen was broken and she was pregnant at the time. Further, that as a result of the broken hymen and the complainant being pregnant, she concluded that there was a possibility of sexual penetration. PW2 produced as evidence the complainant’s treatment card, P3 Form and Lab request form as P. Exhibits 1, 2, and 3 respectively.

17. PW3 was the complainant’s father. He recalled that on 17th June, 2021, the complainant was brought back home for being pregnant. The area chief questioned him and he stated that the Appellant was the one responsible. PW3 reported the matter at Igoji Police Station and both the complainant and the Appellant were subsequently arrested. PW3 confirmed that both the complainant and the Appellant were his children although from different mothers.

18. PW4 was CPL Emman Njeri of Keria Police Post and the investigating officer in this matter. It was her evidence that PW3, in the company of the complainant, reported the subject offence on 18th June, 2022. That together with his two colleagues, PW4 went to the Appellant’s home and arrested him. Further, that the complainant looked pregnant at the time and that from her birth certificate which he obtained from her parent, it was clear that the complainant was a minor aged seventeen (17) years’ old. PW4 produced the complainant’s birth certificate as P. Exhibit 4.

The Defence Case 19. In his defence, the Appellant testified as DW1. It was his testimony that he met the complainant and got into a relationship with her from October 2020 which was leading to marriage. That after the death of his foster parents, he met PW3 who introduced himself as his father. Further, that he later went to visit PW3 and that is when he discovered that the girl he had planned to marry was also a daughter of PW3.

20. From the above facts, I shall now move to analyzing the issues arising for determination by this Court.

a. Whether the trial court properly conducted the voir dire examination of the complainant 21. It is the Appellant’s contention that the trial court erred by not properly conducting a voir dire examination of the complaint. Voir dire examination is a hearing to determine the admissibility of evidence or the competency or qualification of a witness or juror (See Duhaime, Lloyd. “Voir Dire definition” Duhaime’s Legal Dictionary). With specific regard to the testimony of children, voir dire examination is essential to enable the court satisfy itself that the child is conscious of the truth. The purpose of voir dire was explained by this court in Johnson Muiruri vs Republic [1983] KLR 445 as follows:1. “Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voire dire examination, whether the child understands the nature of an oath in which even his sworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event, an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him.2. It is important to set out the questions and answers when deciding whether a child of tender years understands the nature of an oath so that the appellate court is able to decide whether this important matter was rightly decided.3. When dealing with the taking of an oath by a child of tender years, the inquiry as to the child’s ability to understand the solemnity of the oath and the nature of it must be recorded, so that the cause the court took is clearly understood.4. A child ought only to be sworn and deemed properly sworn if the child understands and appreciates the solemnity of the occasion and the responsibility to tell the truth involved in the oath apart from the ordinary social duty to tell the truth.5. The judge is under a duty to record the terms in which he was persuaded and satisfied that the child understood the nature of the oath. The failure to do so is fatal to conviction.”

22. In this case, a perusal of the record reveals that the learned trial magistrate never enquired from PW1 of whether she understood he meaning of telling the truth and the consequences of lying. In other words, a voir dire examination was not conducted. The effect of failure to conduct voir dire normally depends on the circumstances of each case. In this case, although voir dire examination was not conducted, it is my view that such failure did not vitiate the Appellant’s trial.The charge sheet gives the age of the complainant as seventeen years at the time the offence was committed.According to the testimony of the complainant her date of birth is 17/10/2002. At the time when she gave evidence on 7/2/2022 she was therefore nineteen years old. She was therefore not a child of tenders at the time she was giving evidence and even at time the offence was committed.It is now well settled by the Court of Appeal based on the decision in Kibageny Arap Korir –v- Republic (1959) E.A that a child of tender years means a child under the age of 14 years. In Patrick Kathurima –v-Republic, Court of Appeal, Criminal Appeal No.137/14 it was held that the definition of a child of tender years under the Children Act is not of general application. The court reiterated that the age of 14 years constitutes the threshold for conducting voir dire examination.It was not necessary to conduct a voir dire examination. The evidence of the complainant was properly received and admitted.

b. Whether the prosecution proved its case beyond any reasonable doubt 23. Section 20(1) of the Sexual Offences Act provides as follows:“(1)Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.” (emphasis mine)

24. In this case, the complainant’s age of 17 years was proved by the evidence of the complainant herself and that of the clinical officer. The issue of penetration was also sufficiently proved by the evidence of the clinical officer. Under Section 20(1) incest occurs if one engages in an indecent act with his “daughter, granddaughter, sister, mother, niece, aunt or grandmother.” This means that the act does not cover half- sister or half-brother. The appellant and the complainant were half-brother and half-sister”. They were step brother and sister who are not covered under the Section. The two do not fall under the degree of consanguinity envisaged under the Act.

25. I have emphasized the words “who to his knowledge under this section. As rightly submitted by the respondent in their submissions, the key ingredient of the offence of incest is knowledge. The other essential element of the offence is intentional indecent act.

26. The prosecution submitted that the appellant and the complainant were both aware of their family relationship by this very submission. The question that begs an answer is why the prosecution decided to charge the appellant and not the two of them. The Constitution of Kenya outlaws any form of discrimination.

27. In the case of GMB –v- Republic (2018) eKLR. The court held that in an offence of incest penetration is not necessary ingredient. As such a woman who engages in a relationship with his brother with full knowledge that the person is his brother commits the offence of incest. The Constitution prohibits discrimination. Article 24 (4) of the Constitution states as follows:-“The State shall not discriminate directly or indirectly against any person including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.”It is self defeating for the State to assert that both parties were aware of their family relationship and prefer charges against one. The prosecution ought to have decided whether the two were in an incestuous relationship meaning, involving in sexual intercourse when they were close realtives.

28. Be thus as it may, I have a duty to determine the appeal before me. This duty as held in Okeno –v- Republic (1972) E.A 32 involves analyzing the evidence adduced before the trial court, evaluate it and come up with my own independent finding. PW1 who is the complainant testified that she stays with her father who is PW3 in this case. The record shows that the witness was treated as a reflactory witness. The record does show the basis for her being treated as a reflactory witness. She was committed to prison for eight (8) days and agreed to testify. She said she called the appellant home where she used to stay with her grandmother. They engaged in sexual intercourse. The PW1 testified that she did not know that the appellant was his brother. The submission by the State that the appellant and the complainant used to live together is not borne out of the evidence.

29. On his part, PW3- the father of the appellant and the complainant told the court that the appellant claimed that the pregnancy of the complainant was his. PW3 testified that the complainant and the accused are his children from different mothers. Though PW3 stated that the appellant went to his home three years before the incident, he admitted that the statement he recorded with police indicated that he went there in 2021. The PW3 further stated that he never called the appellant to his home prior to the incident. This witness was not candid. If he had not called the appellant to his home prior to the incident how then can he claim that the appellant and the complainant had lived together. This contradictions in the evidence of PW3 has cast serious doubts as to whether the complainant and the appellant had lived together as a brother and sister. The complainant herself testified that she did not know that the appellant was his brother and that it was PW3 who forced her to record a statement. I find that the evidence of PW1 & PW3 was contradictory and raised doubts on their testimony. The appellant on his part adduced evidence on oath that she met PW1- and wanted to take her as his wife. His parents passed away and PW3 introduced himself to him as his father. He was then surprised to learn that the girl she wanted to marry was his sister. I have considered the defence of the appellant. The Constitution guarantees the right of an accused person to be presumed innocent until proven guilty.Article 50(2) (a) of the Constitution provides:-“Every accused person has the right to a fair trial which includes the right-a.To be presumed innocent until the contrary is proved.”The burden is on the prosecution to prove the case beyond any reasonable doubts.

30. In the case of Woolmington –v- Director of Public Prosecutions (1935) AC 462 which lays down the cardinal principle of the Criminal Law on the burden of proof, the golden thread principle that, in general that the prosecution bears the burden of proof in criminal trials. The standard of proof in criminal cases is well settled, it must be beyond any reasonable doubts. See Joo-v- Republic (2015) eKLR.The prosecution bears this burden throughout the trial. The burden in criminal trials never shifts. The burden which the prosecution had to discharge is whether the appellant with full facts, information awareness engaged in sexual intercourse with the complainant knowing that she was his sister.

31. In view of the analysis which I have given, I find that the prosecution did not discharge the burden of proof that the appellant had knowledge that the complainant was his sister. This is not helped by the fact that the respondent only charged the appellant. It is trite that the benefits of doubts in a criminal case must be given to the accused. The question as to whether the appellant had knowledge that the complainant (PW4) was his sister was not proved beyond any reasonable doubts.On this ground alone I find that the appeal has merits.In Conclusion:I allow the appeal.I order that-1. The conviction is quashed.2. The sentence is set aside.3. The appellant be set at liberty unless he is otherwise lawfully held.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 9TH DAY OF NOVEMBER 2023. L.W. GITARIJUDGE