[2017] KEHC 2020 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

CRIMINAL APPEAL NO. 35 OF 2016

[From the original conviction and sentence in Criminal Case No. 31 of 2016 in the Chief Magistrate’s Court at Narok, R. v. Hillary Oponi Maleto]

HILLARY OPONI MALETO …………………………..APPELLANT

VERSUS

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

JUDGEMENT

1. The appellant has appealed against his conviction and sentence of life imprisonment in respect of the offence of defilement contrary to section 8(1) as read with 8(2) of Sexual Offences Act No. 3 of 2006.

2. The state has supported both the conviction and sentence.

3. The appellant was convicted on the direct evidence of N. M. (PW 1) who was the complainant.

4. The defence of the appellant was that he was framed by the complainant and her parents.

5. The appellant has raised 12 grounds in his petition of appeal to this court. In ground 1, he has stated the unchallengeable fact that he did not plead guilty. In ground 2, he has faulted the trial court in convicting him on the evidence of the prosecution witnesses which was contradictory and inconsistent. And for that reason, he has stated that that evidence was not credible.

6. The evidence of the complainant (PW 1) was that the appellant was her paternal cousin. She also testified that she was born in 2005 in respect of which she showed the clinic card which indicates that she was born on 8/2/2005.

7. It was also her testimony that on 15/1/2016 at 7 pm, her step-mother, PM (PW 2) gave her sh.25/= to go and buy some sugar. She instructed her to pass through the house of Mama P who was the mother of the appellant, from whom she was to be given sh.5 to go and buy sugar. She went there and was given Sh.5 and in the process, the appellant accompanied her to the kiosk. It is her evidence that the appellant had a spot light. After purchasing the sugar, the appellant whom she had left behind in the kiosk followed her. After catching up with her, she advised her that they take a shortcut through a maize plantation.

8. After they got into the maize plantation, the appellant tripped her and she fell down. The appellant tore off her panty. He then forcefully had sexual intercourse with her. The complainant continued to testify that she felt pain and started bleeding. She wanted to scream but the appellant threatened to kill her if she did so. After satisfying himself, the complainant went away with his spotlight. The complainant got up and picked her torn panty and proceeded home. She proceeded home and delivered the sugar.

9. She was still in pain and was unable to stand. Her sister, Ytold her to stand. She then got off the bed and as a result, Y saw blood stains on the sheets. Y then asked her as to what had happened. It is at that point in time that she told her that the appellant had raped her.

10. As a result, the mother of the appellant and that of the complainant were called, who arrived and checked her private parts. They confirmed that she was raped. They then took her to Olokurto Health Centre, where she was examined. She finally testified that clansmen tried to arrest the appellant but he escaped, with the result that he was re- arrested much later.

11. Furthermore, the step-mother of the complainant PM (PW 2) testified that she had sent the complainant to go and buy sugar. Upon return from the kiosk, the complainant told her that her leg was in pain and as a result, she went straight to the bed. She then examined her after getting off from the bed and saw blood dripping from her legs. She called her co-wife and the 2 of them examined the private parts of the complainant. They saw the injuries in her private parts and as a result, they took her to Olokurto Health Centre, where she was treated and a P3 form filled. It was also her evidence that the father of the appellant caused him to escape from the village and did not return to the village for over 2 months. The complainant told the step mother that the appellant had defiled her.

12. Mary Kisio (PW 5) was the clinical officer who examined the complainant. She found that the complainant had difficult in walking and was bleeding from her private parts. She also found the complainant had pain in the lower abdominal area. She further found that the hymen of the complainant was freshly torn, with multiple lacerations on the labia menora. She also found a foul smelly discharge from her private part. It was her opinion that the complainant had been defiled. Finally, she put in evidence the medical report, namely the P3 form as PEX 3 and the post care form as PEX 4.

13. In the light of foregoing evidence, I find that the evidence is cogent and consistent that it is the appellant who defiled the complainant. In the circumstances, I find no merit in ground 1 which is hereby dismissed.

14. In ground 3, the appellant has faulted the trial court for convicting him on evidence that was not capable of justifying a conviction. Additionally, he has complained that the testimony relied upon by the trial court showed that the witnesses had a grudge against him. In this regard, the sworn evidence of the appellant was that the complainant and her parents had grudges against him. While under cross-examination, the appellant testified that he did not have a grudge against the complainant. In the circumstances, I find that the prosecution evidence was truthful and credible while that of the appellant was incredible. In the circumstances, I find no merit in this ground of appeal and is hereby dismissed.

15. In ground 5, the appellant has raised the same complaint that is similar to ground 3 and for that reason, I find no merit in that ground for the reasons given in respect of ground 3 and I therefore dismiss it.

16. In ground 6, the appellant has faulted the trial court both in law and fact in failing to find that he was illiterate and was not conversant with the law. In this regard, I find that the appellant gave s worn evidence and stated that he had no witnesses to call. I also find that he cross-examined the prosecution witnesses namely PW 1 and PW 2. I also find that he did not cross-examine PW 3, PW 4, PW 5 and PW 6. It is clear therefore that he chose to cross- examine the key prosecution witnesses and elected not to cross-examine some of them. In the circumstances, I find that the appellant was not incapacitated in cross-examining some of the witnesses by virtue of his illiteracy. It also shows that he was conversant with what was required of him in deciding whether to cross-examine or not. I therefore find no merit in this ground of appeal and is hereby dismissed.

17. In ground 7, the appellant has faulted the trial court in failing to find that the complainant was defiled by her brother and the appellant. In this regard, I find that the evidence of the complainant that she did not implicate her brother with this defilement. I also find that the appellant did not put this issue to the complainant when she was testifying. In the circumstances, I find no merit in this ground of appeal and is hereby dismissed.

18. In ground 10, the appellant has faulted the trial court for failing to find that there was no corroboration of the evidence of the complainant. In this regard, I find that the escape of the appellant from the village for over 2 months is sufficient corroboration of the complainant’s evidence. It is also important to point out that her sworn evidence did not as a matter of law require corroboration according to Kibangeny arap Kolil v. R. (1959) EA 92, because she gave sworn evidence following a voire dire examination. The escape of the appellant from the village according to PW 2 lasted for over 2 months. It was after he re-surfaced that he was arrested. In the circumstances, this ground lacks merit and is hereby dismissed.

19. In ground 13, the appellant has faulted the trial court for failing to find corroboration of the complainant’s evidence although it is not required by section 124 of the Evidence Act (Cap 80) Laws of Kenya. I have already dealt with the issue of corroboration in ground 10 and for the reasons given therein, I find no merit in this ground and is hereby dismissed.

20. In ground 12, the appellant has faulted the trial court in failing to compel the prosecution to get the truth of this case in which members of the community had tried to resolve before it was taken to court. I find this ground to be of a general character and I also find that the prosecution presented the evidence to the court. In the circumstances, I find no merit in this ground and is hereby dismissed.

21. In ground 11, the appellant has faulted the trial court for delivering judgement that was full of misdirections and errors which resulted in a miscarriage of justice. I have considered the judgement of the trial court and I am unable to find the misdirections and errors that resulted in the miscarriage of justice. In the circumstances, I find no merit in this ground of appeal and is hereby dismissed.

22. In ground 4, the appellant has faulted the trial court in failing to find his age before this judgement was delivered. In this regard, I find that the appellant, according to his own evidence was aged 18 years. He is therefore in law an adult. In the circumstances, I find no merit in this ground of appeal and is hereby dismissed.

23. In ground 8, the appellant merely stated his wish to be supplied with the court proceedings which is now spent.

24. In ground 9, the appellant expressed his wish to be present during the hearing of his appeal. He was allowed to attend his hearing of his appeal and therefore this ground of appeal is spent.

25. This is a first appeal. As a first appeal court according to Okeno v. R. (1972) EA 32, I am required to re-assess the entire evidence and come to my own findings of fact. I have done so and I find that the appellant was convicted on ample evidence.

26. The upshot of the foregoing is that the appellant’s appeal is hereby dismissed in its entirety.

Judgement delivered in open court this 14th day of November, 2017 in the presence of the appellant and in the presence of Mr. Mukofu for the respondent.

J. M. Bwonwonga

Judge

14/11/2017