[2015] KEHC 1873 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT MALINDI

HCRA NO.27 OF 2013

(Appeal originating from the conviction and sentence by Hon. N. Shiundu in Malindi CR. NO.1073 of 2009)

FRANCIS KAINGU NZAI ............................ APPLICANT

VRS

REPUBLIC .......................................... RESPONDENTS

JUDGMENT

The appellant was charged with the offence of defilement contrary to section 8 (1) (2) of the Sexual Offences Act. The particulars are that the appellant on diverse dates between 2nd January and 15th January 2009, in Malindi District within Coast Province, intentionally and unlawfully committed an act which cause his genital organ to penetrate into the vagina of the complainant, a girl aged 14 years. He was convicted and sentenced to serve 20 years imprisonment.

The grounds of appeal are that the prosecution did not prove its case beyond reasonable doubt; that no DNA tests were conducted to prove the paternity of the child and that the appellant's defence raised doubt on the prosecution case. The appellant chose to determine his appeal by way of written submissions. He contends that the trial court simply relied on the fact that the complainant was pregnant but no evidence was adduced to prove that there was penetration. He further argues that the age of the complainant was not established. The complainant alleged that she was born in 1994 but her age was assessed at 14 years. It is further submitted that the proper age assessment report was missing. The trial was not fair as the complainant was pregnant yet no DNA test was conducted. The complainant engaged in sexual intercourse more than once and she did not tell her parents. It is the appellant's contention that the complainant's mother has asked him to take her daughter but he declined that request as her daughter was a student. The complainant's mother seemed to have known that her child was pregnant. The defence was reliable and did case doubt on the prosecution case.

Miss Mathangani, prosecution counsel, opposed the appeal. Counsel submitted that the victim's age was assessed. Appellant defiled the victim in three different occasions. She was taken to hospital and confirmed to be pregnant. She narrated how the appellant defiled her. Force was used in the defilement. The defence was considered and found not to be credible.

Six witnesses testified before the trial court. PW1 was the complainant. She told the court that she was 14 years old and in class 5. On 2/1/2009, at about 4. 00 p.m, she was from school when she met the appellant whom she knew. He led her to the bush and defiled her. He told her that he would kill her if she told her father. On another occasion, she had gone to fetch firewood and the appellant went to the bush and defiled her. Once again he told her not to tell anyone or he would kill her. On the 3rd occasion she had been sent by her father to go and buy him airtime. The appellant met her on the way and took her to the bush. It was about 7. 00 p.m and he defiled her. She started feeling pain and headache and she informed her mother. She was taken to hospital and she was confirmed to be pregnant. She had not had sex before with anyone. She gave birth to a baby girl named F Z. She could not tell her mother as the appellant had threatened to kill her. Her age was assessed to be 14 years.

PW2, C B M is PW1's father. He testified that he noticed that PW1 was not happy and asked his wife to talk to her. PW1 informed her mother that the appellant had defiled her. He reported to PW1's headmaster and was referred to the police. They went to arrest the appellant but he ran away. On the 3rd time, they managed to arrest him. PW3, PC Millicent Soi was based at Malindi Police Station. The incident had been reported at the station in January 2009. On 4/8/2009, PW2 went to the station and informed her that the appellant had been arrested. She was the Investigating Officer and caused the appellant to be charged with the offence.

PW4, Ibrahim Abdullahi, is a Clinical Officer who was based at Malindi District Hospital. He attended to PW1 on 8/4/2009. She was 16 weeks pregnant by 16/3/2009 when pregnancy tests were conducted. He concluded that PW1 had been defiled. He filled the P3 form on 8/4/2009. PW5, APC Alfred Murembwewas stationed at the Gede Chief's Camp. On 3/8/2009 he arrested the appellant after previous failed attempt. He took the appellant to Malindi Police Station.

PW6, Doctor Ariba Orembo is a dentist who was based at Malindi District Hospital. He assessed PW1's age on 19/5/2011. He assessed her age to be 15 years. A previous age assessment report done at the hospital in 2009 had assessed PW1's age as 14 years. PW6 caused PW1 to be x-rayed for purposes of age assessment.

In his unsworn statement, the appellant testified that he worked as a gardener at Coral Key Hotel. He knew PW1 as a neighbour and a friend to his sisters. At times PW1 used to sleep at their home. One time PW1's mother told him to take PW1 for marriage. He told her that it was not possible as PW1 was in school and was below age. After a short while, he saw that PW1 was pregnant. She was beaten and mentioned the appellant. He knew that PW1 had a boy friend called M in her school. He was ready to be taken for paternity test.

The evidence on record shows that indeed PW1 was defiled. She conceived and gave birth to a baby girl. PW1's age was assessed to be 14 years old in 2009. The main issue for determination is whether it was the appellant who defiled her. There was no eye witness and it is only the evidence of PW1 in relation to the occurrence of the incident. Her evidence that she was defiled in corroborated by that of PW4, Ibrahim Adbullahi, a Clinical Officer who attended to PW1. As per his evidence, PW1 was 16 weeks pregnant by 16/3/2009.

It is the evidence of PW1 that the appellant defiled her three times. On the first instance she was from school. On the second one she was collecting firewood in the bush and on the 3rd instance she had been sent to buy airtime. All this happened between 2nd January and 15th January 2009. The appellant threatened to kill her. In his defence, the appellant denied committing the offence. His position was that the complainant had a boy friend by the name M, son of W M. The appellant made an application to be subjected to DNA test and this request was granted. However, no such tests were conducted.

I have carefully gone through the evidence on record. I was not able to get the original lower court file to enable me evaluate the exhibits produced in court. The only issue which still raises doubt is the date of delivery of the baby and the fact that PW1 was 16 weeks pregnant by 16/3/2009. Assuming that PW1 became pregnant on the first day she was defiled, that is 2nd January 2009, by 16/3/2009 it would have been about ten (10) weeks. That is four weeks of January, four weeks of February and two weeks of March. Even if we add two more additional weeks still we will have twelve weeks. There is another four weeks which make it one more month. This issue is also supported by the date of delivery. PW1informed the court that the appellant started defiling her from 2nd January 2009. She gave birth on 2/6/2009. I was not able to see the notification of birth that was produced as Pex.3. PW1 testified on 15th December 2010. That would men that the child was delivered within six (6) months. This is a period of about 24 weeks. The normal expected period is nine months or about 36 weeks. It is not unusual for a six (6) months delivery but that would be a premature birth.

From the evidence on record, it is quite possible that PW1 was over one month pregnant by 2nd January 2009. That is why she was 16 weeks pregnant by 16/3/2009. Further, that is why she delivered on 2/6/2009. Indeed the delivery was at the beginning of June, 2009. In essence therefore the pregnancy lasted for only five months, from 2nd January, 2009 to 2nd June 2009. That is not possible. This gives credence to the defence allegations that PW1's mother approached the appellant to take her daughter as a wife. The appellant maintains that he declined and he shortly learnt that PW1 was pregnant. PW1's mother did not testify. The record shows that whenever she was called to testify her blood pressure went up and she couldn't. No evidence was adduced that she had high blood pressure. This was a statement from the prosecutor. The appellant's position that PW1 had a boy friend was not an afterthought. This was part of the cross examination. The contention that the mother had approached the appellant to take PW1 was also not an afterthought. Even PW3, the Investigating Officer was informed by the appellant during investigations that the mother had given PW1 to the appellant.

An accused should be convicted only if the case is proved beyond reasonable doubt. It could be possible that the appellant defiled PW1. It could be equally possible that PW1 had slept with another man and became pregnant. The appellant was working as a gardener at a Malindi hotel. His evidence raised doubt on the prosecution case. Similarly, the prosecution evidence itself is doubtful. It is not clear how the complainant could have delivered on 2/6/2009 after having been defiled on 2/1/2009. This raises doubt which should benefit the appellant.

In the end, I do find that the prosecution did not prove its case beyond reasonable doubt. The appeal is allowed. The appellant shall be set at liberty unless otherwise lawfully held.

Dated, signed and delivered at Malindi this 28th day of October, 2015.

SAID J. CHITEMBWE

JUDGE