[2022] KEHC 14692 (KLR)

FOO v Republic (Criminal Appeal 52 of 2017) [2022] KEHC 14692 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14692 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Appeal 52 of 2017

KW Kiarie, J

November 3, 2022

Between

FOO

Appellant

and

Republic

Respondent

(From the original conviction and sentence in Criminal case No.157 of 2016 of the Senior Resident Magistrate’s Court at Ndhiwa by Hon. Mary A. Ochieng–Senior Resident Magistrate)

Judgment

1. FOO, the appellant herein, was convicted of the offence of incest contrary to section 20 (1) of the Sexual Offences Act No 3 of 2006.

2. The particulars of the offence were that on the February 29, 2016 at [Particulars Withheld] within Homa Bay County being a male person caused his penis to penetrate the vagina of MAB aged 12 years, a female person who to his knowledge was his niece.

3. The appellant was sentenced to serve life imprisonment. The appellant was in person. He has appealed against both conviction and sentence.

4. He raised nine grounds of appeal which can be summarised as follows:a.That the learned trial magistrate erred in law and in fact by failing to note that there was a land dispute between his and complainant’s family.b.That the learned trial magistrate erred in law and in fact convicting the appellant on insufficient evidence.c.That the learned trial magistrate erred in law and in fact convicting the appellant on evidence full of contradictions.d.That the learned trial magistrate erred in law and in fact by disregarding defence.

5. The appeal was opposed by the state through Mr Ochengo, learned counsel on grounds that the appeal lacks merit.

6. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno v Republic [1972] EA 32.

7. Section 20 (1) of the Sexual Offences Act provides: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:

8. Flowing from provisions of this section, the ingredients for incest are as follows:a.The accused must be a male;b.The victim must be a female;c.She must be his daughter, granddaughter, sister, mother, niece, aunt or grandmother;d.He must have knowledge of the relationship; ande.There must be penetration.

9. The evidence of MAB (PW1) was that on February 29, 2016 at about 3 pm she was sent home together with CA to go and shave their long hair. They went home which was about two kilometers away and her grandmother gave her some money to go and shave. She therefore went to her friend CA which was two hundred meters away from her home. The duo proceeded to Ndhiwa to shave.

10. After the two had shaved they embarked on their journey back home. On the way, they met with the appellant who was on a motor cycle. He informed her that her grandmother asked him to buy some food for her at [Particulars Withheld]. She therefore boarded his motor cycle and her friend CA proceeded home alone. When they reached [Particulars Withheld] at the bus stage, the appellant alighted briefly before embarking again and they rode towards her grandmother’s home without purchasing the food.

11. When they reached near a house which was under construction, the appellant pulled her to a grass thatched house. This is where he ordered her to lie down but when she refused, he took out a knife and threatened to stab her. She obliged and he proceeded to defile her.

12. After the defilement ordeal she ran to CA’s mother which was 200 meters away. This was at about 6 pm. She asked her to take her home which she did.

13. The evidence of MOK (PW2) is that she is CA’s mother. Her evidence is that at about 9 pm, the complainant woke her up and asked her to escort her home. She looked normal and when she declined to take some food she had offered her, she escorted her to her home.

14. The evidence of CA (PW4) appears self-contradicting. At the onset of her evidence she said that while they were returning home from shaving hair with the complainant, they met with the appellant on a motor bike. When He asked MAB to accompany him to Ndhiwa she declined and indicated that she had some home work to do. She however said that MAB boarded the appellant’s motor bike and went with him. She did not say why her friend later agreed to go with the appellant.

15. These three witnesses are very key in this case but they gave evidence that was contradictory. Whereas MAB (PW1) testified that she went to the home of MOK (PW2) at about 6 pm, the latter testified that she went at about 9 pm. It would be expected that after a girl of her age had gone through a harrowing experience of defilement, it would be plainly obvious to any person who interacted with her soon thereafter, that she had undergone a nasty experience. However MOK (PW2) testified that she appeared normal.

16. A part from her self-contradicting evidence CA’s (PW4) evidence contradicted that of the complainant. The complainant did not testify that at any stage she had declined to accompany the appellant as testified by her friend, CA.

17. The information on the P3 form indicate that the defilement complained of took place on February 29, 2016 at 10 am. This information must have come from the witnesses. The Court of Appeal in the case of Ndungu Kimanyi v Republic [1979] KLR 283 (Madan, Miller and Potter JJA) held:The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.The contradictions by these three witnesses is very material and it was not safe to base the conviction on their evidence without corroboration by some other material evidence.

18. MAB (PW1) was aged 12 years at the time of the alleged incident. She described the size of the penis of the appellant to be the like a bulb holder. If indeed there was defilement and in the manner she explained to have happened, one would have expected more findings than the small laceration noted on the labia majora and the absence of the hymen. There was no evidence whether the hymen was freshly ruptured or not. This raises doubts whether indeed there was defilement.

19. The grandmother of MAB (PW1) was not called as a witness. Her evidence probably could have reconciled that of the complainant and that of MOK (PW2) about the approximate time of the offence. The Court of Appeal in the case of Bukenya v Uganda [1972] EA 549, (Lutta Ag Vice President) held:The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.

20. I am tempted to strongly infer that failure to call MAB’s grandmother would have been adverse to the prosecution case.

21. From the foregoing analysis of the evidence on record, I find that the conviction of the appellant was unsafe. I therefore quash the conviction and set aside the sentence. The appellant is set at liberty unless if otherwise lawfully held.

DELIVERED AND SIGNED AT HOMA BAY THIS 3RD DAY OF NOVEMBER, 2022KIARIE WAWERU KIARIEJUDGE