[2018] KEHC 3526 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KABARNET

CRIMINAL APPEAL NO. 106 OF 2017

From original conviction and sentence in Criminal Case Number 821 of 2012 at PM’S Court Eldama Ravine

EMMANUEL MAKHETI LUBISIA..............................APPELLANT

VERSUS

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

(An appeal against conviction and sentence vide Criminal Case no 821 of 2012 at PM’s Court Eldama Ravine imposed by Hon R. Yator (PM) in a judgment dated and delivered on 29th April 2015)

JUDGMENT

1. The appellant was convicted for the offence of defilement contrary to section 8(1) as read with 8 (2) of the Sexual Offences Act and sentenced to serve imprisonment for life. The appellant was, on 29th August 2012, initially charged with attempted defilement contrary to section 9(1) as read with 9 (2) of the Act which was later substituted with a charge of defilement on 27th March 2013 after six prosecution witnesses had testified before (Kasera, PM) and the trial started de novo before a different magistrate (Yator, PM).

2. The evidence before the trial court was, principally, as follows:

“Prosecutions’ case”

1. PW1 I.J

“I come from Seguton and I am eight years old and I do not know the year I was birth and I school at [particulars withheld] Primary class two. On 28/8/2012 at 12. 30pm I was at home with my mother who was inside the house, I was outside with Cheptoo who is older than me. When we were playing someone came and told me to take potatoes to my mother and I did not take any potatoes to mother and we went with him to another house and there was no one in the house. He then removed my trouser and pant. He then removed his trouser, then asked me to sleep on the bed and I slept on the bed and he is the one who lifted me on the bed and I faced up while lying on the bed and he slept on top of me and I cried because I was feeling pain in my private parts. He did not tell me anything, when I cried someone came and it was P K C and he took me where my mother was. The clothes I was wearing were taken to hospital, mother took me to hospital and I was given medicine. I did not see the documents the doctor wrote, she took me to the police station. The accused did not give me anything when he slept on me. He had never defiled me before. I can identify the trouser and pant I was wearing on material date. I do not know the trouser and I have never seen it the pant is not mine.

2. PW2 P K C

I come from Seguton – Timboroa and I am a peasant farmer. On 28/8/2012 at 1. 00pm I was at home intending to prepare lunch I was outside went to the house to prepare vegetables but I did not have cooking fat and I went to look for fat at a neighbour who was working for my uncle one P K and the neighbour I was going to borrow fat is Emmanuel Mukheti Lubisa. I went to his house and I got a spoon and went there I knocked and it is one house but divided twice to bedroom and kitchen. I knocked the bedroom and there was no once. I then knocked his bedroom and the door was not locked and I pushed it open and I found the accused lying on the bed while defiling a child and it was PW1 who was in court. He had removed his trouser up to the knees while lying on the child he was defiling and he then put on his clothes and the girl was quite. I asked him what he was doing to the child and he said I do not tell anyone and told him not to get out of bed.

I then called my uncle L K K whom I had left in the kitchen through the phone to come to the bedroom and he came and I told him what happened and he asked me to take the girl to the mother as he looks after the accused.

The girl’s mother is wife to my uncle one J K1 and I found the father in the sitting room and I told him and he took the girl to the mother who was in the kitchen who looked at the girl and informed the girls’ father in my presence that she had been defiled and that the girl had discharge on her private parts. We then went with the father to the house of the accused and found L K K still watching him and L K K called the Chief nicknamed Selenge who arrived and arrested accused and took him to Chiefs’ office who gave us two officers and we escorted him to Timboroa Police Station and we left him there after we recorded our statements.

The girl was taken to Seguton Hospital but I did not accompany her. I have never heard of him defiling any child before. The child’s trouser he had removed and we left the Childs’ trouser at the police, they are the once on court.

Cross-examination

Accused defiled the child. I did not find the child crying. I did not hear any screams. I did not see any blood. The child’s mother was not at home of the scene but I personally took the child to her home and the mother was there. I personally saw him defile the child.

The bed was wooded and the clothes in court she was wearing on material date. The accused said I do not tell anyone and maybe the same was not recorded in the statement though I told the officers. Nowhere reads he told me not to inform anyone.

Re-examination

I could not hear any screams as it was raining. The child’s mother was not at home of the accused but our home is thirty meters away. I informed the police that the accused had told me not to tell anyone. The writing on the statement belongs to the police officer as I was talking as he records.

3. PW3 L K K

I come from Seguton – Timboroa, I am peasant farmer. On 28/8/2012 at 1. 00pm I do recall I was at my brothers home one R K and I received call from P K C asking me to go house of employee of my brother R K and employee was Emmanuel Mukheti. He just asked me to go there and I went and found accused sat near head of bed while the girl was at the lower part of the bed also sat. PW2 then told me he found accused on top of the child and had removed his trouser up to the knees and suspected he had defiled the girl. The accused had put on his clothes. There was no one else at the house and the girl was not crying.

I asked P K C to take girl to be checked by the mother as I stood guard of the accused. The girl’s mother is M K or J K3s which are both her names. The girl’s mother is my sister-in-law. The girls home in 30 metres from accused’s house. The girl did not talk to us as she kept quiet. I remained with accused and he was denying doing anything to the girl and I told him to wait. PW2 then returned with girl’s father one J K1 and P K C said the mother had seen the girl and confirmed had been defiled.

I then called Assistant Chief one Erick Cheruiyot and informed him of incident and he waited for him and on arrival he interrogated the accused and agreed he was trying to defile the girl and denied actually defiling her. we then accompanied him to Chiefs camp but before my sister D C T took the girl to Seguton dispensary for examination.

At assistant chiefs office he was hand cuffed and we went with J K1 to the dispensary to see the report and had written a small note recording urinalysis exceptional and child was taken to district hospital and she went with D C T. We then escorted accused together with Jane and PW2, D C T to Timboroa Police station and after we recorded statements and he was looked in. I have never heard of accused ever defiling the girl. He was herding cows for my brother and I am not related to the accused and I do not know his home. I have never disagreed with him.

Cross-examination by Wafula

I know one C who is my niece and was not at the scene and not sure if C’s age but around 5-6 years. Accused was sat on his wooded bed. The girl was in fear and not talking and she had not cried and I have known the girl since she was young and offering and she was in fear and when I asked a questions she could not answer. I did not record in the statement the questions accused was asked by Assistant Chief. I went with my brother to the dispensary and referred for further medication but I did not tell the report results.

Cross-examination

I was present and heard the accused tell the Chief he tried to defile the girl. I was talking to the police recorded statement and asked questions and they did not ask me if accused saw anything before the Chief.

4. PW4 J K2

I am a peasant farmer and I come from Seguton on 28/8/2012 at 1. 00pm I do recall I was at the Shamba by myself then I came home to prepare lunch and the father of my children came with the child and asked me to see the child as she had been defiled by Emmanuel. I removed the child’s clothes, pants and I saw some waterish substance at her private parts and I went to look for grandmother but she was not at home and I informed D C T who is the child’s aunt that Emmanuel had defiled the child and she came to see the child as I stood outside.

The Chief of Seguton came to our house after L K K my brother-in-law called him and he came to arrest accused who was a herds boy for my brother-in-law P K and he was escorted to Timboroa police station and the child was taken to Timboroa Police station and did not accompany her as I was having another young child hence I asked D C T to take her. The child was 8 years old.

D C Ttold me that the following day she brought the child to Eldama Ravine hospital but first to Timboroa clinic. I do not know what transpired when the child was taken to hospital as D C T knows.

Cross-examination

I was at the shamba when I came I got the information while preparing lunch. I did not come to your house. I observed the child though I did not have any tools to examine. It was PW1 P K C who brought the child from you who came to tell me but I did not witness the act. I did not accompany child to hospital. The child was taken just to Timboroa clinic. I am not framing you as you defiled her. I did not know you were having a debt with your employer PW1 Kibet.

5. PW5 D C T

I come from Seguton – Timboroa and I am a teacher at [particulars withheld] Academy School. On 28. 8.2012 at 1. 00pm I do recall I was at home preparing lunch when M K wife to my brother also known as J K3 came home saying that her child had been defiled at their home and I found the child seated while crying an di tried to talk to her and she could not tell me as she was afraid. I decided to take the child to Seguton dispensary and the doctor examined her and wrote his report and instructed us to take her for further treatment and we then went to Chief’s office and I was with the child and her father then we left to Timboroa police station where we reported and I recorded my statement.

The following day on 29/8/2013 we accompanied AP from Timboroa together with Emanuel to Eldama Ravine district hospital where the child was tested (urinalysis) and the doctor did a report. I handed over the clothes the child was wearing and coloured trouser and green pant. Emmanuel was working at our home and had worked for around six months and he is in court. At the period he had worked there we had never disagreed.

Cross-examination

The complainant was brought to me but PW4 came to inform and I went to see and talk with the child. I did not come to where you were. We did not take you to the dispensary. I do not know if there is any money owed to you and we are not framing you.

6. PW6 J K l

I come from Seguton and I am a peasant farmer. Seguton Kapsilgoi. On 28/8/2012 at 1. 00pm I was at home with my wife M K when P K C (PW2) brought me the child saying he had found the child being defiled by the accused and I asked M K to check on the child and on checking she said white substance and waterish in the child’s inner garments. The pant was red and whitish.

The child was 7 years old. I left the child and I went to look for the accused and I found he had locked himself in the house. He was with L K K who had called the Assistant Chief who gave up AP officers. The Assistant Chief is one Erick who personally come home and I found accused opened the door and he escorted him to Chiefs office and we handed him over to AP officers.

My sister D C T took the child to hospital as I escorted accused to the chief. My house is where accused lived, 300 metres away and he was a worker for my brother and he had never disagreed with him.

Cross-examination

The child was brought home and it is her mother who checked her and I come to your house. You had locked yourself inside the house and I was with PW3 outside your house. PW2 found you with the child and said he had found you defiling the child. I saw the child’s clothes with waterish substance. I did not witness the offence. I have never disagreed with you. You live next to other neighbours but no other neighbours witnessed so none recorded statements. My evidence is not hearsay.

7. PW7 DR. Doris Nkatha

I work at Eldama Ravine District Hospital as medical officer. I have the P3 form and I did examine the patient and filled it. P3 form. on 29. 8.2012 and the patient was 7 years old female and was not talking due to her age and her relatives talked on her behalf saying someone attempted to defile her and history of alleged defilement was not clear and my finding the injuries were about 12 hours and labia majora and minora had some lacerations and a whitish discharge which were only finding and other bodily systems were normal.

My conclusion was there was an attempted defilement due to the lacerations and the labia minora majora before I examined the child. She had a treatment chit from Eldama Ravine District hospital and the card and client treatment chit correspond to that in the P3 form. Indicating the names and age and the history and chit is dated 29. 8.2012 and the history given and examination has similar findings and medications done. I have the P3 form of Emmanuel Mukheti Lubisia which I filled on 29. 8.2012, ID of the accused and our examination results were negative and samples were taken for blood and lab examinations and urine and HIV test and I did not get the results. Medical chit from the same facility is names of Emmanuel Mukheti Lubisia dated 29. 8.2012 and has same history and lab reports were negative nor any deceased seen.

Cross examination by accused

I examined the complainant and had lacerations on her private parts and was the labia majora and offence was after 12 hours and spermatozoa can still be seen nor private parts. No high vaginal swab was done hence could not tell if there was presence of spermatozoa. You were examined and results were negative. The child was young and I could not interrogate her further hence I used her mother.

8. PW8 NO. 75253 P.C Caroline Kipkorio

I am stationed at Timboroa police station and I am the Investigating Officer herein. On 28. 8.012 at 6. 00 pm I do recall I was at crime office when I received a complainant that her child had been defiled at Seguton and the reportee was the aunt of the child one D C T PW5 and had been escorted by officers from Seguton AP came with the accused alleged to have defiled the child together with PC Thuo we locked in the accused.

The victim was at the station and after taking statements of child who said accused called her to his house that he wanted to send her somewhere and that accused then gave her some food he was cooking and that he wanted to send to her mother but instead took her to his bedroom and he removed her clothes and trouser and accused pant and he removed his trouser partly upto hi knees and he laid the child on bed and lied on her and started to defile her. Since it was night and the aunt had already taken her to Seguton dispensary but not treated and referred to Eldama Ravine and had not been attended to hence the following day they returned and escorted her to Eldama Ravine District Hospital together with accused where they were then treated and I supplied both with P3 forms which were duly filled. P exhibit 4 & 5 respectively and had both medical chits P exhibit 3 and 6. I then charged the accused as opinion indicated there had been lacerations.

The age of the victim I ascertained through her clinic card which is in court and given by mother of the child and date of birth is 11th September, 2004. MFI 7 and originates from Roret health centre and I wish to produce as exhibit 7.

The girls pant white is given and the flowered trouser is MFI 1 exhibit green pant – exhibit 2. The accused is before court points out) and hence used to know him.

Cross examination by accused

Complainant was brought while I was in office and after report being made is when I visited scene and I visited scene later when you were not around. The child was slightly limping. The child was given a referral hospital from Seguton as she was not treated there. The child explained to relatives what happened. I went to the scene to the house you lived and divided into two rooms one you use as kitchen and another as bedroom and besides 2 other house of your employer and 100 meters from house of complainant there are neighbours which is slightly far and the shamba is big. I did not get information that complainant owed you any money and I was not investigating your belongings.

Defence case

DW1 Emmanuel Mukheti Lubisa

I come from Webuye and I was a herd’s boy in Timboroa before my arrest. On 28/8/2012 I had returned to Timboroa on 26/8/2012 from burying my mother and on date of returning I started my duties on 27/8/2012 at 2. 00pm PW2 whom I was living with at the homestead came and asked me why I had returned there instead remaining at my home and I told him my boss had called me to return to work.

On 28/8/2012 I went to milk and did my duties up to 1. 00pm and took cows to take water after which I got into the house and shortly I saw someone I did not know coming and found me at the borehole and he said he was the Chief sent for me and told me we go I will know ahead at the centre and I accompanied him up to the AP camp. At 3. 00pm they took me to Timboroa police station where on arrival I was interrogated by officers and told them I did not know why I was there and at 7. 00p I said PW2 came with relatives and sad I had defiled PW1 and they told me to keep quite.

The problem was from PW2 who owed me money and in fact I demanded it at the police station before the OCS and he said he will bring while he was never brought to date.

On 29/8/2012 I was brought to the court and still deny the charges herein. None of the witnesses testified to have seen me defile the child as PW2 said he found me in the house while in fact I was at the borehole fetching water for the cows and I do not know the charges herein.

I wondered how the doctor said the child was found with sperms yet as per P3 form the same was not seen in the complainant and the same not produced in court. That is all.”

3. The appellant appealed from both conviction and sentence and raised the following grounds and submissions, which at the hearing of the appeal, the appellant relied on his written grounds of appeal and submissions without any supplemental oral submissions:

“Supplementary Grounds of Appeal”

1. THAT,the learned trial magistrate gravely erred in law and fact when he convicted me in this case yet failed to find that the charge sheet was defective contrary to section 214 of the Criminal Procedure Code.

2. THAT,the learned trial magistrate erred in point of law and fact when he convicted me in this case yet failed to understand that, the prosecution side failed to summon crucial/vital witnesses before court contrary to section 150 of the Criminal Procedure Code.

3. THAT, the learned magistrate further erred in point of law and fact when he convicted me in this case while relying on contradicting evidence among adduced by the prosecution witnesses.

4. THAT, further the learned trial magistrate erred in point of law and fact when he convicted me in this case without complying with section 200 of the Criminal Procedure Code when the case went denovo.

5. THAT, finally the learned trial magistrate erred in both law and fact when he rejected my defense without explaining properly the reasons for its rejection hence violated the provisions of law under section 169 (1) of the Criminal Procedure Code.

4. The DPP opposed the appeal on conviction and at the hearing submitted as follows:

Miss Machariafor ODPP

Appellant is opposed on conviction but conceded on sentence.

Attempted defilement contrary to section 9(1) and 9(2) of Sexual Offences Act and sentence to serve imprisonment for life.

Charges of attempted defilement were proved. age of the complainant is 7 years. Clinical card with name of complainant showed she was born on 11/9/2004.

Pw1 testified that she knew the appellant as his house was near their house and she used to see him talking to her father. On Cross-Examination pw1 stated that the appellant injured her and pointed at his private part. Pw 2 stated that he went to appellant’s house on that date and found him on his bed. The appellant had covered himself with a blanket. Pw2 saw a child’s arm. He was not sure of what he saw and so he left. He went back to the appellant’s house the second time he found the appellant red handed lying on the child’s complainant.

Complainant lay on her back and the appellant was on her. Its trouser was lower to the knee and the childs trouser was on the bed. At that time the child was not covered as pw2 was able to see him well.

Pw2 called Pw3 who came and find the appellant with the child but at the time the appellant had put on his trouser. Pw2 took the child to her mother and Pw3 called the chief and appellant was arrested.

Pw5 was the mother of the child, who testified that upon examining the child she saw some watery substance on the Childs’ pubic area and the vaginal entrance was enlarged. She took the child to Hospital.

Pw7 is the doctor who examined the child and filled P3 form dated 29/8/2012 and the findings were that Labia had Lacerations, and whitish discharge. She concluded that there was attempted defilement.

Trial Magistrate convicted the appellant for attempted defilement as evidence was overwhelming. Sentencing was under section 8(1) and 8(2) Sexual Offence Act and therefore life imprisonment.

Section 9(1) and (2) is from a term not less than 10 years, and life sentence was excessive and illegal.

We urge the court to use its powers under section354 and conviction for attempted defilement but review the sentence.

Determination

5. The issue before the court is whether the case against the appellant for defilement had been proved to the standard of beyond reasonable doubt, or whether only a case of attempted defilement was proved.

6. It appears to me, having considered the record of the appeal, that the DPP was mistaken. The charge before the court was one of defilement for which the appellant was convicted and sentenced to imprisonment for life. The trial court’s judgment dated 29th April 2015 was clear that the court had considered the charge of defilement of a child contrary to section 8(1) as read with 8 (2) of the sexual Offences Act, and found that “the prosecution had proved its case beyond the required stand of proof” under the said charge of defilement.

7. The substitution of the charge may have been prompted by the interpretation of the Doctor’s medical examination report of the victim. The offence Defilement is defined under section 8(1) of the Sexual Offences Act as requiring an act of penetration with a child and penetration is at section 2 thereof defined as “the partial or complete insertion of the genital of a person into the genital organs of another”.

8. The evidence of the examining doctor (PW7) presented findings of but concluded that it was a case of attempted defilement, as follows:

“Laceration on both labia minora, majora. Hymen intact. Conclusin attempted defilement”.

9. While partial defilement may also have caused the laceration or bruises on the labia minora, as to amount to defilement, the court must defer to the opinion of the doctor who does not conclude a case of defilement but rather one of attempted defilement. A case of indecent act with a child or adult contrary to section 11 (1) of the Sexual Offences Act for which the appellant was charged in the alternative, may also cause injuries to the labia, without necessarily causing partial penetration.

10. Indecent act is defined in section 2 of the Act as follows:

“indecent act” means any unlawful intentional act which causes- (a) any contact between the genital organs of a person, his or her breasts and buttocks with that of another person;(b) exposure or display of any pornographic material to any person against his or her will, but does not include an act which causes penetration;”

11. In these circumstances the court must defer to the examining doctor who saw and was able to assess the extent of the injury as to classify it as attempted defilement rather than of defilement.

12. The benefit of this lack of clarity as to the presence or otherwise of penetration must be given to the accused, and consequently the court finds only a case of attempted defilement which carries the minimum sentence of imprisonment for ten years rather than one of defilement as charged, calling for imprisonment for life. The alternative charge of indecent act with a child c/s 11 (1) also carries a sentence of not less than 10 years

13. There was no doubt in my mind that the appellant was caught red-handed by PW2 with the child on his bed, “the accused lying on the bed while defiling a child and it is PW1 who was in court. He had removed his trouser up to the knees while lying on the child he was defiling and then he put on his clothes and the girl also put on hers”; it is the extent of the intercourse that was unclear. The medical evidence of PW7 corroborated the complainant’s testimony that the appellant whom she knew as Emmanuel had injured her private parts when he lay on her while she lay down on a bed in the appellant’s house. The complainant’s uncle PW3 when called by the eye witness PW2 went and found “accused sat on bed and my niece a child (PW1) on the bed and accused was near head of bed while the girl at the lower part of the bed.”

14. The trial court may however, be criticized for not allowing the cross-examination of the child victim (PW1). The court properly conducted a voire dire to establish whether the child said to be 7 years understood the nature of the oath or was sufficiently intelligent to warrant the reception of her evidence in terms of section 19 (1) of the Oaths and Declaration Act, as follows:

“19. Evidence of children of tender years

(1) Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.”

15. The learned trial magistrate found that “I do note that the minor does not possess enough intelligence and understanding of oath hence shall give unsworn evidence”. If the child did not possess sufficient intelligence and did not understand the nature of the oath, she ought not to have given evidence. The court must have found, never mind the language, that the child herein “possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth” for it to receive her evidence.

16. Unlawfully, the Court did not, however, permit cross-examination by the accused, which is a constitutional right of an accused under Article 50 (2) (k) of the Constitution to “adduce and challenge evidence”. However, there was sufficient evidence in the testimony of PW2 and PW3 as well as medical evidence of PW7 to support the conviction of appellant for indecent act or attempted defilement, even if the evidence of the complainant under section 19 (1) of the Oaths and Statutory Declaration Act was rejected for lack of cross-examination.

17. Of course, section 180 of the Criminal Procedure Code permits the court to convict for attempt to commit an offence charged, which although not charged is proved against the accused as follows:

“180. Persons charged with any offence may be convicted of attempt

When a person is charged with an offence, he may be convicted of having attempted to commit that offence although he was not charged with the attempt.”

The appellant herein would be liable to be convicted for attempted defilement pursuant to section 180 of the Criminal Procedure Code.

18. However, as the appellant was charged in the alternative to indecent act c/s 11(1) which carries the same penalty as the offence of attempted defilement under section 9(2) of the Act, the court will on the basis of the same facts proved by the prosecution convict the accused appellant for the offence of indecent act with which he is alternatively charged, there being no need to resort to the conviction for a lesser offence under section 180 of the CPC. The age of the child was proved by a Child Health Card issued by the Ministry of Health’s Kenya Expanded Programme on Immunization (KEPI) which indicated her date o f birth as 11th September 2014, making her 7 years at the time of the offence.

Orders

19. Accordingly, for the reasons set out above, the conviction and sentence of the appellant for the offence of defilement contrary to section 8(1) as read with 8(2) of the Sexual Offences Act are, respectively, quashed and set aside, and substituted therewith by a conviction under the alternative charge of indecent act with a child contrary to section 11(1) of the Sexual Offences Act and sentence him to serve imprisonment for a term of ten years.

20. In compliance with section 333(2) Proviso of the Criminal Procedure Code, the term of imprisonment for ten years shall be reckoned beginning the 29th August 2012 when the appellant was presented before the trial court and remanded for his trial.

Order accordingly.

DATED AND DELIVERED THIS 3RD DAY OF OCTOBER 2018.

EDWARD M. MURIITHI

JUDGE

Appearances:

Appellant in person.

Ms. Macharia, Ass DPP for the Respondent.