[2017] KEHC 3009 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

CRIMINAL APPEAL NO. 71 OF 2015

H K K…………………...........................APPELLANT

VERSUS

REPUBLIC………...........................…RESPONDENT

(From the Original Conviction and Sentence in Criminal Case No. 29 of 2014 of the Senior Principal Magistrate’s Court at Kilifi – L. N. Wasige (Mrs.), SRM)

JUDGEMENT

1. The Appellant, H K K, is serving life imprisonment for the offence of incest contrary to Section 20 (1) of the Sexual Offences Act, 2006 (SOA). The particulars of the offence disclosed that on 11th January, 2014 at [particulars withheld] Village, Ganze District he intentionally and unlawfully penetrated, with his penis, the vagina of K.N. who was to his knowledge his step-daughter.

2. In the alternative he was said to have unlawfully and intentionally touched the vagina of K.N. thus contravening Section 11 (1) of the SOA.

3. Being wholly dissatisfied with the judgement of the court, the Appellant filed an appeal, later amended, premised on the grounds that the case was not proved beyond reasonable doubt; that the circumstantial evidence was not supported by medical evidence; that the witnesses gave contradictory evidence; that Section 36 of SOA was not adhered to; that the trial Court failed to consider the existence of a grudge that led to his being framed for the crime; that his defence was not considered; and that his rights under Article 50(2)(h) of the Constitution were breached.

4. The appeal was disposed of by way of written submissions with the Appellant urging that the prosecution was to prove age and penetration. The Appellant averred that the age of the victim was not proved beyond reasonable doubt as even the trial Court noted that the estimated age on the P3 form is not sufficient proof of age. Relying on Criminal Appeal No. 504 of 2010, Kaingu Elias v R.the Appellant asserts that one element of the offence of defilement, being the age of the victim, had not been proved. The Appellant also submitted that there was an allegation raised that one Joel was initially suspected of committing the offence but this was not pursued. It was the Appellant’s position that there was need to analyse the samples both from the victim and himself as a suspect in order to clear any doubts. The Appellant contended that it was improbable for a three year old to have been penetrated without drawing blood. In addition, the Appellant submitted that the alleged infection found on the child ought to have been analysed by the doctor.

5. The Appellant’s view is that the circumstantial evidence linking him to the crime was not supported by medical evidence and in particular evidence obtained by invoking Section 36 (1) and (2) of SOA in order to meet the requirements of Section 109 of the Evidence Act which places the burden of proof of any fact on he who alleges the existence of such fact. The Appellant reminded the court that the burden of proof lies with the prosecution throughout the trial and a trial court has a duty to look at the evidence as a whole. It was the Appellant's case that his defence was never considered by the trial Court.

6. The State represented by counsel from the Office of the Director of Public Prosecutions opposed the appeal asserting that the case was proved to the required standards. On the sentence imposed by the trial Court, the State’s position was that sentencing is in the discretion of a trial court but such discretion ought to be exercised judiciously. Further, that it was upon the State to prove aggravating factors like the circumstances relating to the commission of the crime, the disposition of the accused, the society’s interests and the interest of the child victim. In support of submissions on sentence, the decisions in Fatuma Hassan Salo v Republic; The State v Muller, Ivan, Andries;and the Botswana case of The State v Mpho Mpelegang were cited. However, no citations were provided for the cases.

7. Turning to the offence for which the Appellant was convicted, it was submitted that the prosecution had established that the Appellant was a relative of the child falling under the category provided by Section 22 of the SOA.

8. It was the position of the State that the complainant suffered from the acts of the Appellant who forced himself onto a defenceless child.

9. As for the production of the medical report, the State contended that the same was done in compliance with the provisions of Section 77 of the Evidence Act.

10. Turning to the Appellant’s complaint that the people who arrested him were not called to testify, the State asserted that Section 143 of the Evidence Act provides that no particular number of witnesses shall be required for proof of any fact. It was the State’s case that there was sufficient corroboration on record.

11. The State contended that the proviso to Section 124 of the Evidence Act was clear that no corroboration was required in respect to a sexual offence. Further, that children should be protected from exploitation, inducement or coercion into sexual activity and exposure to obscene materials as was decided in CKW V Attorney General & another [2014] eKLRand James Ng’ang’a Njau v Republic [2014] eKLR. The State therefore urged this court to uphold the conviction and confirm the sentence imposed by the trial Court.

12. As was stated in Okeno v Republic [1972] EA 32and Chemagong v Republic [1984] 1KLR 611, the duty of a first appellate court is to submit the evidence to a fresh and exhaustive examination before reaching its own decision on the evidence. It is only after weighing the conflicting evidence and drawing its own conclusion that the court can reach a decision on whether the trial court’s findings were correct or erroneous. In analyzing the evidence it should be noted that the appellate court, unlike the trial court, did not have the advantage of hearing or seeing the witnesses testify. On top of these, the guiding principle is that a finding of fact made by the trial court shall not be interfered with unless it was based on no evidence or on a misapprehension of the evidence or the trial court acted on wrong principles.

13. The offence of incest is created by Section 20(1) of the SOA which provides that:

“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.”

14. The charge has four components namely the sex of the perpetrator and the victim, the relationship between the two, penetration and the age of the victim for purposes of sentencing.

15. Section 22 of the SOA provides the test to guide the court in determining whether the sexual act complained of is incestuous.

16. M.H. testified as PW1 and stated that she is the mother of K.N. and that the Appellant was K.N.’s uncle. C.M. testified as PW2 stating that K.N. was his elder brother’s child and the Appellant was his cousin. PW3 Police Corporal Paul Walumba investigated the matter and allegedly established that the Appellant was K.N.’s uncle. The Appellant told the trial Magistrate that he was K.N.’s uncle as he was the older brother of her father.

17. The charge indicated that K.N. was the Appellant’s step-daughter. Page 272 of the 9th edition of Black’s Law Dictionary states that a stepchild is the child of one’s spouse by previous marriage. Section 22 (1) of the SOA provides the test of relationship as follows:

“22 (1) In cases of the offence of incest, brother and sister includes half-brother, half-sister and adoptive brother and adoptive sister and a father includes a half father and an uncle of the first degree and a mother includes a half mother and an aunt of the first degree whether through lawful wedlock or not.”

18. Sub-section 2 then goes ahead to provide the meaning of the relationships stated in sub-section 1. It states:

“In this Act–

a. “uncle” means the brother of a person’s parent and “aunt” has a corresponding meaning;

b. “nephew” means the child of a person’s brother or sister and ”niece” has a corresponding meaning;

c. “half-brother” means a brother who shares only one parent with another;

d. “half-sister” means a sister who shares only one parent with another; and

e. “adoptive brother” means a brother who is related to another through adoption and “adoptive sister” has a corresponding meaning.”

19. The 10th edition of Concise Oxford English Dictionary at page 1407 indicates that a stepdaughter is a daughter of one’s husband or wife by a previous marriage. It is noted that the evidence adduced did not establish that the child was born out of a previous marriage between the Appellant and his wife. She was thus not his stepdaughter. The evidence on record seems to suggest that the Appellant is a brother of the father of the child. In this case, the child would be the niece of the Appellant and if this is correct then any sex between the Appellant and the complainant would be incestuous as having sex with a niece amounts to incest.

20. However, there was the telling evidence of PW2 who stated that the father of the child was his brother. Asked whether he knew the Appellant he stated that: “I know the accused. We are cousins.”The evidence of PW2 appears to provide an explanation behind the indication in the charge that the child was the stepdaughter of the Appellant. In light of the evidence of PW2, I find that the prosecution failed to establish that the child was the niece of the Appellant. If the Appellant was a cousin of the father of the child then it follows that the Appellant could not be guilty of incest. A man or a woman can have sex with an adult offspring of a cousin and although some moralists may frown on such liaisons, the same has not been outlawed by the SOA. I therefore agree with the holding of my brother J.A. Makau, J in W.O.O. v Republic [2016] eKLR that sex between cousins does not amount to incest.

21. In the circumstances, I find and hold that the offence of incest was not committed by the Appellant. Before I leave this point, I also note that the main charge as drafted was incomplete. Where it is alleged that a victim of incest is a child, the charge must state so and this fact must be proved in order for an accused to be liable to imprisonment for life upon conviction. In the case at hand the age of the child was not disclosed in the main count even though this was done in the alternative charge. In drafting charges, prosecutors should ensure that the same are drafted as per the ingredients of a particular offence. Having found that the Appellant did not commit the offence of incest, I need not consider the effect of the failure by the prosecution to state the age of the child in the charge.

22. I will now proceed to consider the other aspect of this appeal. The mother of the child stated that when she saw K.N. emerging from the bush with the Appellant she noted that the child walked with difficulty as though she had an injury on her leg or private parts. She checked for the injury on her legs and found none. She proceeded to check the private parts and upon lifting the dress she saw sperm flowing from the vagina. C.M. also checked the child upon the request of the mother and saw sperm flowing from the child’s vagina.

23. PW4 Dr. Aziza Majid produced a P3 form and a post-rape care report. PW4 indicated that she was going to produce a P3 form filled for K.N. by her colleague Dr. Busra. Her evidence was that she had worked with Dr. Busra and she was familiar with her handwriting and signature. The Appellant had no objection to the production of the P3 form by the witness.

24. The P3 form that was produced by PW4 indicated that an examination of K.N.’s genitalia revealed that the vulva was reddish and the hymen broken. There was also some discharge which was tested and the test revealed an infection but no spermatozoa. The P3 form was filled on 14th January, 2014. The trial Court found on the basis of the P3 form that penetration had occurred.

25. PW4 also produced the post-rape care form filled by one Martha Nyaga. Unlike the P3 form no grounds were established for the production of the same by the witness. I note that the trial Court did not rely on this piece of evidence in arriving at the conviction.

26. M.H. confirmed that the child was not bleeding and in his submissions the Appellant poses the question whether it was possible to violate a child of such tender age without drawing blood. Section 2 of the Act defines penetration as “the partial or complete insertion of the genital organs of a person into the genital organs of another person.”Bleeding is not an indicator of penetration if there is partial penetration. The reddish appearance of the vulva could have by itself been a sign of penetration. In James Ng’ang’a Njau v Republic [2014] eKLR,L.A. Achode, J, in my view, correctly held that “there is no legal requirement that there should be injury to the genetalia of the victim for the offence of rape to be proved.”Penetration as legally defined does not require complete insertion. Even “peeping” with a sexual organ into the sexual organ of another person would amount to penetration. Once you knock the door you are on the way towards committing the offence of defilement or rape. I therefore find that penetration was proved by the evidence of PW1 and corroborated by that of PW3.

27. The question that remains is whether the Appellant is the person who penetrated K.N. The mother of the child testified that on the material date at about 7. 00 a.m. she was heading to fetch water from a borehole that was about 1 kilometre from her house. She noted that K.N. was not around but her other children informed her that she had already left for her grandmother’s house. It was normal for K.N. to go there unescorted as it was not far from their house. She decided to pass by the house of K.N.’s grandmother but before reaching there she saw K.N. with the Appellant in a bush before they joined the footpath she was using. She stopped and waited for them to reach where she was. She noticed that her daughter walked with a limp. She appeared injured on her leg or on her private parts. She examined the girl right there without addressing the Appellant. Upon noticing a discharge she screamed and attracted people who included PW2, her husband and the village elder. The village elder informed the chief who in turn alerted the police who came to the scene and took her together with child and the Appellant to Bamba Police Station.

28. Upon cross-examination, PW1 told the trial Court that there was a time that she suspected that one Joel had defiled the child because she encountered pain when urinating and had mentioned Joel upon being questioned. She told the Court that she never pursued the matter with Joel who was a child slightly older than K.N. She stated that the child seemed to be in pain. Her evidence was that when people came the Appellant walked away and he was later traced to the house of his mother from where he was arrested.

29. PW2 testified that he responded to the distress calls and upon arriving at the source of the alarm he found PW1, K.N. and the Appellant. PW1 requested him to check K.N.’s private parts before lifting her dress. He saw sperm between the child’s thighs. Sperm was also flowing from her vagina.

30. PW3 testified that he rearrested the Appellant from AP officers. He interrogated PW1 who narrated to him what had happened. He later visited the scene and found that the house of PW1 was about 50 metres from the bush.

31. The trial Magistrate correctly found that the evidence that had been adduced was circumstantial evidence. She proceeded to correctly identify the law on how such evidence should be treated and concluded that the evidence of PW1 and PW2 had placed the Appellant at the scene on the material morning and there was nobody else who could have defiled the child.

32. In order to justify an inference of guilt based on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused. The facts should be incapable of explanation upon any other hypothesis than the guilt of the accused – see R. v Kipkering Arap Koskei & another [1949] 16 EACA 135.

33. In Daniel Muthomi M’arimi v Republic [2013] eKLR, the Court of Appeal reiterated its statement in Abanga alias Onyango v Republic, Criminal Appeal No. 32 of 1990 (UR) as to the test to be applied before circumstantial evidence can be used to convict. The Court stated:

“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:

i. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

ii. those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

iii. the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

34. The evidence that was placed before the trial Court clearly established that the Appellant was seen emerging from a bush with K.N. She had difficulty in walking raising PW1’s antenna. When PW1 checked the child she noticed a whitish discharge and so did PW1 who responded to PW1’s distress calls. Nobody else apart from the Appellant was at the scene.

35. The prosecutor correctly pointed out that no particular number of witnesses needed to have been called. In the case of Keter v Republic [2007] 1 EA 135 as cited in the case of Republic v George Onyango Anyang & another [2016] eKLRit was held that:

“The prosecution is not obliged to call a superfluity of witnesses but only such witnesses [as] are sufficient to establish the charge beyond any reasonable doubt.”

36. In the case at hand I find that the prosecution ought to have done more. It was necessary to call the village elder. This was a material witness. This was not done. Even assuming that the witnesses called sufficiently proved the offence, there are other things that are disturbing about this case as I will demonstrate in due course.

37. As regards age of the child, the trial Magistrate stated that although no documentary evidence was availed on the age of the child she had observed that the child could not have been more than five years of age. Her observation was not without basis. PW1 in her testimony stated that:

“I know one K.N. She is the baby that I am carrying in court. She is my child. She is 3 years old. She speaks a little Giriama. She refuses to talk to strangers.”

The trial Magistrate noted in the proceedings that PW1 was carrying a small girl.

38. I do not find any error in the way the Magistrate proceeded. In the case of Basil Okaroni v Republic [2016] eKLR the Court of Appeal quoted the decision in the Ugandan case of Francis Omuroni v Uganda, Court of Appeal Criminal Appeal No. 2 of 2000 where it was held that:

“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense….”

The mother of the child told the court that the child was three years old. The trial Magistrate using her experience as a person who handles children’s matters concluded that the child was below five years. I therefore find that the age of the child was properly established.

39. There was a claim by the Appellant that his trial was in violation of the Constitution in that he was not provided with legal aid by the State. It is noted that at the time of the Appellant’s trial there was no legal aid mechanism that had been put in place in compliance with the requirements of Article 50(2)(b) of the Constitution. In the circumstances I find that the Appellant went through a fair trial and lack of counsel did not inhibit him from exercising his rights during the trial as guaranteed by the Constitution. Any breach of rights in a criminal trial is better remedied through compensation by damages.

40. I have already found that the Appellant did not commit incest. From the evidence adduced it was possible that he could have penetrated a child hence committing an offence termed defilement. The offence as created by Section 8(1) of the SOA and punishable under Section 8(2) attracts a sentence of life imprisonment. That offence falls in the same genre with the offence with which the Appellant was initially charged. He would therefore not suffer any prejudice if he is convicted for the offence of defilement. His trial was premised on the fact that he penetrated a child aged three years. The prosecution had nothing more to prove in the case of defilement.

41. The Appellant in his defence stated that he was charged because of a land dispute he had with the mother of the complainant. He, however, did not place any evidence before the Court to support this allegation. It is therefore easy to dismiss his defence. However, one does not understand why the father of the child who was said to have been among the people who responded to the alarm was never called as a witness.

42. It is also noted that although the child was immediately taken to hospital and the witnesses talked of sperm flowing from the child’s vagina, the P3 form shows that no spermatozoa was seen upon examination of the child. This raises questions as to the guilt of the Appellant.

43. There was also the evidence of the mother of the child that the child had previously complained of pain when urinating and upon being questioned had named one Joel. Could this have explained the redness of her vagina and the discharge? There is therefore doubt as to whether the child was indeed defiled by the Appellant.

44. In conclusion, I find that the evidence adduced did not confirm defilement and neither did it connect the Appellant with any harm that may have been done to the complainant. The benefit of doubt ought to have been given to the Appellant. This appeal succeeds and the conviction is quashed and the sentence set aside. The Appellant is set free forthwith unless otherwise lawfully held.

Dated, signed and delivered at Malindi this 12th day of October, 2017.

W. KORIR,

JUDGE OF THE HIGH COURT