[2022] KEHC 12875 (KLR)

Etyang v Republic (Criminal Appeal E107 of 2021) [2022] KEHC 12875 (KLR) (12 September 2022) (Judgment)

Neutral citation: [2022] KEHC 12875 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal E107 of 2021

HI Ong'udi, J

September 12, 2022

Between

Abdirizak Etyang

Appellant

and

Republic

Respondent

(Arising from the Judgment by G. Adhiambo Principal Magistrate delivered on 25th October 2021 in Senior Principal Magistrates Court Kimilili Sexual Offences case no. 008 of 2021)

Judgment

1. Abdirizak Etyang the appellant herein was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual offences Act No 3 of 2006. The particulars being that the appellant on diverse dates between March 2, 2021 to March 5, 2021 at [Particulars Withheld] in Kimilili sub-county within Bungoma County, unlawfully and intentionally caused his penis to penetrate the vagina of MNW a child aged 13 years.

2. He also faced an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006. The particulars being that the appellant on diverse dates between March 2, 2021 to March 5, 2021 at [Particulars Withheld] in Kimilili sub-county within Bungoma County, unlawfully and intentionally caused his penis to penetrate the vagina of MNW a child aged 13 years.

3. The appellant upon amendment of the charge sheet faced a second (2nd) count of incest contrary to section 20(1) of the Sexual Offences Act No 3 of 2006. The particulars being that on diverse dates between March 2, 2021 and March 5, 2021 the appellant while at[Particulars Withheld] in Kimilili sub county within Bungoma county unlawfully and intentionally caused his penis to penetrate the vagina of MNW who was to his knowledge his daughter.

4. He pleaded not guilty and the case proceeded to full hearing with the prosecution presenting four (4) witnesses while the appellant gave an unsworn statement of defence. The trial court found him guilty and convicted him of the main count of defilement and sentenced him to twenty (20) years imprisonment.

5. Being aggrieved the appellant filed this appeal against the judgment. He initially raised seven (7) grounds of appeal. However on August 4, 2022 he filed twenty five (25) amended grounds which are as follows:1. That the trial magistrate erred in law and facts by failing to realize that the prosecution case was not proved beyond reasonable doubt.

2. That the complainant’s contention was not supported by the medical evidence.

3. That no defilement was proved in the present case.

4. That the complainant age was not proved either by production of birth certificate or age assessment complainant’s names are different more than 3 different names.

5. That no penetration was proved.

6. That the appellant’s as the perpetrator was doubtful.

7. That the trial magistrate erred in law and fact by not realizing that this was a framed up case against the appellant.

8. That the trial magistrate erred in law and fact by failing to realize that the prosecution witnesses evidence adduced in court was marred with contradictions, inconsistencies, discrepancies and glaring gaps.

9. That the trial magistrate erred in law and facts by failing to realize that PW1, PW2 and PW3 were un-credible witnesses and PW1 (complainant) adduced unsworn testimony in court.

10. That the trial magistrate erred in law and facts by failing to realize that this case was shoddily investigated

11. That his arrest was improper.

12. That the medical evidence in P3 form, PRC form and treatment note form indicates no defilement

13. That the evidence adduced in court by both PW1 and PW2 raised doubts in their trustworthiness hence cannot be used to secure a conviction.

14. That by convicting the appellant under section 215 of CPC, it’s very vivid that there was no sufficient evidence to prove the three ingredients for offence of defilement.

15. That PW4’s evidence (clinical officer) exonerates the appellant from the alleged offence.

16. That no exhibit was produced in court by the prosecution side like the complaints clothes eg pants e.tc

17. That no DNA sample was taken from the appellant for examination as the same would prove his innocence.

18. That the appellant was not accorded fair trial as enshrined in article 50(2) of the constitution since all the documentary evidence was not made available to appellant like investigation diary, list of exhibits memo and the age assessment report.

19. That broken, missing or perforated hymen is not proof of penetration or defilement as it can be broken by other factors like vigorous exercise and some infants are born without hymen.

20. That the trial magistrate erred in law and facts by failing to realize that critical and vital witnesses were not called to testify in court hence miscarriage of justice.

21. That the trial magistrate erred in law and fact by dismissing his trustful and cogent defence which was enough to secure his acquittal.

22. That the trial magistrate erred in law and fact by demonstrating the fact that he was biased and prejudicial against the appellant.

23. That the trial magistrate erred in law and facts by failing to warn himself against the danger of convicting the appellant on uncorroborated evidence of the complainant.

24. That the sentence of 20 years was executed against the law and in violation of article 25(a) of the constitution and without discretion.

25. That charge-sheet amendment was an afterthought hence unlawful.

6. The appeal was disposed of by written submissions. In his undated submissions filed on August 4, 2022 the appellant took issue with the amended charge sheet saying it was unprocedurally amended depriving him of the right to fair trial under article 50(2) of the constitution. He argues that the prosecution was not sure of its investigations hence charging him for both defilement and incest. Relying on Fappyton Mutuku Ngui v Republic [2012] eKLR he identifies the ingredients to be proved for a charge of defilement to succeed. These are:i.Penetration of the complainant’s genitaliaii.Identity of the appellant as the perpetratoriii.Age of the victim.

7. About age he claims the same was not proved since an immunization card can’t prove age. On whether he was identified as the perpetrator he submits that it is not clear when the offence was committed and why no report was made earlier on. He adds that the dock identification is unreliable as he was framed up and the complainant coached to do so.

8. He submitted that the medical evidence by PW4 ruled out any form of defilement of the complainant. He relied on the P3 form and treatment notes in support. On the missing hymen he argues that this alone was not proof of penetration. He relied on the case of PKW vs Republic [2012] to support his argument.

9. The appellant submitted further that crucial witnesses like the neighbours who ignited these allegations never recorded statements nor testified. He urges the court to find the complainant to be an incredible witness. See Ndungu Kimanyi vs Republic[1979] KLR 283.

10. Its his submission that his alibi defence was cogent and trustworthy and ought to have secured him an acquittal.

11. The respondent’s submissions dated August 3, 2022 were field by learned counsel M/s Hilda Omondi. It is her submission that age was proved by the evidence of the mother who produced the victim’s clinic card showing she was 13 years. On identification she submitted that the victim is a step daughter of the appellant. She had lived with the appellant since she was young and knew him well. That there was solar light in the house, which enabled her identify him.

12. It’s her further submission that despite the medical evidence showing that there was no penetration she agreed with the court’s disagreement with that finding. She submitted that the evidence of PW2 and PW3 corroborated the version of events by the complainant. The trial court observed the complainant’s demeanour and was satisfied that she spoke the truth.

13. Counsel urged the court not to interfere with the trial court’s discretion as was held in Republic vs Abeid [1990] eKLR. She contended that the trial court considered the appellant’s defence at length and correctly rejected it as not being plausible. On the sentence she submitted that the appellant ought to have been given a stiffer sentence since the complainant is a step daughter. She urged this court to enhance the sentence.

14. A brief summary of the evidence on record is that PW2 (EN) is the wife of the appellant and the mother of the complainant (MNW). When PW2 got married to him she already had MNW as her firstborn child. They continued living together and she got three (3) other children with the appellant.One night in March 2021 PW2 disagreed with the appellant who ordered her to leave the house. She left with MNW for a neighbour’s house. The next day MNW went to school and after school went back home. PW2 went for her at 9pm but the next day the little girl again went back to her siblings.

15. This went on and on. When PW2 finally returned after being away for a week, MNW reported to her what the appellant had been doing to her in terms of defilement. She reported to two village elders who did not assist him. Neighbours were also notified. The police came and arrested him as MNW was taken to hospital for treatment.

16. PW4 Patrick Koros the clinical officer based at Kimilili sub country hospital examined MNW and produced the P3 form (PEXB3) and the treatment notes (PEXB2). His finding was that there was no indication of defilement from the two documents, and his examination.

17. In his unsworn defence the appellant denied the charges against him. He stated that on February 28, 2021 he was at his place of work when he received a call from a neighbour. He was notified of a problem at his house. He rushed there and found his estranged wife with a friend of hers. They had been estranged for one and a half years. She wanted to leave with the children and she even beat his pregnant wife.

18. They had exchanges with the former wife who eventually left with her friend who had accompanied her. He later went to police station on advice of the nyumba kumi elders. He was then charged.

Analysis and Determination 19. This being a first appeal this court has a duty to re-consider and re-evaluate the evidence afresh and arrive at its own conclusion. This was enunciated in the case of Okeno v Republic [1972] EA 32 where the Court of Appeal stated:“An appellant on a fist appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic [1957] EA 336) 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 (Shantilal M Ruwala v Republic [1957] EA 570). It is not the function of a first appellate merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own 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 Peters v Sunday Post, [1958] EA 424. ”Also see Patrick & another v Republic [2005] 2 KLR 162.

20. I have carefully considered the evidence on record, grounds of appeal, both submissions, cited authorities and the law. The main issue for determination is whether the ingredients in a charge of this nature were proved to the required standard.

21. However, before I get to that, there is an important issue which has been raised by the appellant in his submissions which I must address. He contends that the inclusion of the count of incest in the amended charge sheet was an afterthought and a sign that the investigations were shoddy.

22. At the end of the Judgment at page 91 the leaned trial magistrate states:“Since the complainant is the step daughter of the accused I will not find him guilty of incest instead I find him guilty of defilement contrary to section 8(1) of the Sexual Offences ActNo 3 of 2006”.At the same time the trial court did not state what happened to the 2nd count of incest, in the charge sheet.”

23. The record shows that the appellant was charged with defilement (1st count) and incest (2nd count).Section 8(1) of the Sexual Offences Actdefines defilement as follows:“8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.”Section 2 of the same Act provides that penetration entails the partial or complete insertion of the genital organs of a person into the genital organs of another person.

24. The ingredients of defilement have been clearly set out by both parties in their submissions and I have nothing to add. On the other hand the offence of incest is as provided under section 20(1) of the Sexual Offences Act which states:“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”

25. In the case of Sigilani v Republic[2004] 2 KLR 480 the Court held:“The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to specific charge that he can understand. It will also enable the accused to prepare his defence.” (Emphasis mine).

26. The whole purpose for an accused person’s knowing what charge he is facing is for him/her to understand why he/she is in court and to prepare well for his/her defence. Was the appellant supposed to prepare for his defence in respect of the defilement or incest with the same child?What was done in this case is referred to as multiplicity in a charge sheet. This arises from charging of a single criminal act or offence as multiple separate counts. The trial court should not have allowed that as it confused the appellant as to what offence he was actually responding to.

27. The appellant herein should have been charged with either the 1st or 2nd count and not both. Having considered the record, circumstances of this case and the fact that the appellant was convicted on October 25, 2021 I find that justice would demand for a re-trial of the appellant, upon a new charge with only one main count being preferred. That being the case I shall not proceed to re-evaluate the evidence as that would pre-judice the re-hearing of the case. The issue of multiplicity of counts has sorted out this appeal.

28. The upshot is that the appeal partially succeeds. The conviction and sentence are hereby set aside. The file is remitted back for re-trial at Kimilili law courts before any competent Magistrate besides hon G Odhiambo. The appellant to be presented before the said Court on 16th day of September, 2022 for plea taking.If convicted the period served from October 25, 2021 to date to be taken into account.Orders accordingly.

DELIVERED, VIRTUALLY, DATED AND SIGNED THIS 12THDAY OF SEPTEMBER, 2022 IN OPEN COURT AT NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT