[2023] KEHC 25588 (KLR)

IMA v Republic (Criminal Appeal E088 of 2022) [2023] KEHC 25588 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25588 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal E088 of 2022

PJO Otieno, J

November 9, 2023

Between

IMA

Appellant

and

Republic

Respondent

(Being an appeal from the conviction and sentencing of Hon. G. Ollimo (SRM) in Butere SPMC S.O. Case No. E028 of 2022 dated 21st November 2022)

Judgment

1. The Appellant was arraigned before the Senior Resident Magistrate at Butere in Sexual Offences Case No. E028 of 2022 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 of the offence are that on the 4th day of June 2022 in Butere Sub County within Kakamega County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of DL, a child aged 14 years.

2. In the alternative, the Appellant was charged with the offence of indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on the 4th day of June 2022 in Butere Sub County within Kakamega County, the Appellant intentionally and unlawfully touched the vagina of DL, a child aged 14 years with his penis.

3. The Appellant pleaded not guilty to the charge and to prove its case, the prosecution called a total of four (4) witnesses whose evidence can be summarized as below.

4. Voire dire examination was conducted on PW1 and upon the Court being satisfied on her ability to tell the truth, she testified that she was 14 years old and a grade 4 student at [Particulars Withheld] and that on 4th June, 2022 at about 2PM she was coming from the Hospital and passed by the Appellant’s gate where he usually sells sugarcane and charcoal when he remarked ‘toto kuja’ and she ran away. Some children pursued her, caught up with her and dragged her to the Appellant who in turn dragged her to his house which was by the roadside. He then removed his trousers, rolled her skirt down, pinned her to the ground and then raped her. When he finished he told her he loves her and then she fled away and reported to her “shosho” who was at home on what had happened. Later in the evening she reported her ordeal to A who immediately escorted her to Butere Hospital and later to the police.

5. On cross examination she stated that she recognized the Appellant since they lived in the same area and that she fled after the Appellant called her since she felt insecure as he was the only adult around. She further stated that she screamed but no one came to her rescue. It was also her claim that she had gone to hospital on the material day to get medication which she has been getting since childhood.

6. PW2, the victim’s guardian testified that on 4th June, 2021 she returned home at 7:30PM when PW1 narrated to her how the Appellant had accosted her on her way home from the hospital and defiled her. On asking, she informed her that she had not showered and this prompted her to escort her to Butere Sub County Hospital that night and later to the police station.

7. On cross examination she stated that she knew the Appellant prior to the incident since she usually passes by his stall along the road. She also refuted claims that she got bags of charcoal from the Appellant and declined to pay citing Covid 19.

8. On re-examination she stated that the Village Elder reported to her about the allegations that she owed the Appellant money for four bags of charcoal after the second mention of the case in court.

9. PW3, a Clinical Officer at Butere Sub County Hospital testified that the victim was examined by her colleague whom she had worked with for five years and was conversant with his handwriting. She stated that on examination, the victim had multiple bruises on the vaginal wall with a smelly whitish discharge on the vaginal wall, labia minora and majora and the vaginal wall was tender, inflamed and reddened. No spermatozoa was seen and there was presence of epithetical cells. On examination of the Appellant, he had pus cells and leukocytes on urinalysis and he also had syphilis.

10. On cross-examination, she stated that epithelial cells was a sign of trauma or penetration and that the absence of spermatozoa may or may not rule out penetration. She further noted that though the victim was reported to be HIV positive, it is not a must that the perpetrator has to be positive when a patient is positive because where a patient is consistent with drugs, the viral load is suppressed.

11. PW4, the Investigating Officer gave evidence that on 5th June, 2022 she was assigned to investigate a case of defilement against the victim who detailed to her how on 2nd June, 2022 she was on her way from the Hospital when she came across a male individual selling charcoal and who in fear led her to his house and defiled her and that she later reported to her guardian and later to the station. She later made an arrest on the Appellant after establishing that the victim was born on 6th November, 2008 which Birth Certificate she produced in court as PEXH 1.

12. On cross examination she stated she was told that the victim’s perpetrator was a charcoal seller along [Particulars Withheld] road though she did not investigate to ascertain the number of individuals who sold charcoal along the said road and that she relied on the guardian’s word regarding the identity of the perpetrator.

13. The Court ruled that a prima facie case had been established and the Accused person was put on Defence.

14. The Defence called three witnesses whose evidence is as below.

15. DW1, the Appellant herein, refuted the claims by the victim and stated that he indeed sold charcoal and sugarcane and that on 4th June, 2022 he was at one AO homestead who sold him some wood for making charcoal and he stayed at the home until about 8:30 PM preparing charcoal. He stated that his homestead was adjacent to his business and that he has neighbours and the road is always busy to mean that if the victim screamed people would hear. He added that on 27/9/2022 and on 3/10/2022 he tested for HIV and the results were negative. He further stated that he believed he was framed by the victim’s guardian because she ordered charcoal from him on 3/4/2022 and it was their agreement that he would supply the said charcoal on 9/4/2022 which he did but the guardian never paid hence on 12/7/2022 he sent the Village Elder to collect for him the cash from her.

16. DW2 testified that on 4/6/2022 he sold wood to the Appellant after he came to his residence at 7:30 AM and he left him splitting the wood and when he came back at 1PM he found him there and that he left at 7PM.

17. DW3, a Villager Elder stated that he was a stranger to the allegations and that on 12th June, 2022 the Appellant went to his home and reported that he had sold charcoal on credit but the lady had refused to pay. He went to the lady’s home but she denied owing and told him she was a stranger to the allegations of the Appellant.

18. The evidence of DW3 marked the close of the defence case. It is instructive that there was no challenge by way of cross examination of the evidence given by DW2.

19. The Appellant was subsequently convicted and sentenced to thirty (30) year’s imprisonment.

20. Aggrieved with the decision of the trial Court, the Appellant has lodged this appeal and proffered ten grounds of appeal. Even when such a large number of grounds are listed, the Court’s appreciation is that the Judgment is faulted for reasons that the Court ran into error by; finding that the prosecution had proved their case beyond reasonable doubt when the Charge Sheet was defective, the ingredients of the offence not proved, the evidence contradictory, the evidence of the Clinician was assumptive, the entire evidence was deficient and that the sentence was harsh and excessive.

21. On the appeal being admitted, to hearing, it was directed that it be argued by way of written submissions. Both sides have filed well-done submissions, which the Court appreciates as of great benefit having perused same.

Appellant’s Submissions 22. The Appellant identifies five issues for determination to be; whether the prosecution proved the offence of defilement beyond reasonable doubt? Whether the trial Court relied on a defective Charge Sheet to convict the Appellant? Whether the trial Court relied on inconsistent evidence to convict the appellant? Whether the sentence meted on the Appellant was excessive and/or harsh? And, whether the Appellant should be acquitted?

23. The Court considers the fifth is not an issue for determination but a consequence of the determination of the first four issues. The Court takes the view that a determination of those issues is sufficient to dispose the appeal.

24. On whether the prosecution proved the offence of defilement beyond reasonable doubt the Appellant submits that the element of penetration and positive identification of the perpetrator were never proved. He contends that there is doubt if there was penetration for the reason that though it was PW1’s first encounter with sex and no hymen visualized, the prosecution failed to prove whether there were any blood stains, mud stains or grass stains on the victim’s clothes. He further argues that the HIV test results for the Appellant came out negative a sign that he was not the perpetrator. It is then added that the perpetrator was not properly identified because it took eight days for the Appellant to be arrested and at the time of the arrest the complainant was not present and the person that identified him was PW2 and his son yet there were other charcoal vendors in the area. No identification parade was conducted and the victims first encounter with the Appellant was in Court. He reiterates his position in the evidence he gave that he was framed by PW2 for demanding payment for charcoal he supplied to PW2.

25. On whether the trial court relied on a defective Charge Sheet to convict the Appellant, the Appellant submits that the testimony of the complainant that he was dragged by two boys to the Appellant’s gate depicts the offence of gang defilement contrary to section 10 of the Sexual Offences Act No. 3 of 2006 and places reliance on the case of Cosmas Koech v Republic [2021] eKLR where the Court held: -“Accordingly, a person may not have engaged in the sexual act of defilement but is guilty of gang rape or defilement if he was in company of another or others who commit the offence with common intention of committing the offence.For gang defilement to be proved besides the above, the three ingredients of defilement being age of complainant, penetration and identification of assailant must be proved.The essential element of gang defilement is defilement committed in association with two or more persons.”

26. On whether the trial Court relied on inconsistent evidence to convict the Appellant, the Appellant submits that the inconsistencies were; a) PW1 stated that she first reported the incident to “shosh” while PW2 stated that the report was made directly to her; b) PW1 stated that she identified the Appellant at the station while PW4 stated that no identification parade was conducted; c)the incident happened at Shiatsala where there is a police station but instead PW2 made a report at Butere Police Station. He underscored the fact that the purported incident happened on a busy road yet no one saw.

27. On whether the sentence meted on the Appellant was excessive and/or harsh, the Appellant submits that the complainant was 14 years and by section 8(3) of the Sexual Offences Act, the prescribed minimum sentence is 20 years’ imprisonment yet the Appellant was sentenced to 30 years.

Respondent’s Submissions 28. It is their Submission that the offence of defilement was proved beyond reasonable doubt in that the age of the victim was confirmed to be 13 years at the time of the incident through the production of a Birth Certificate. On the element of penetration, the Respondent submits that the victim gave evidence as to how the Appellant dragged her into his house, removed his trousers, rolled down her skirt and defiled her. They further submit that the evidence of the victim is corroborated by PW3, the Clinical Officer, who testified that the victim had multiple bruises on the vaginal wall and a whitish discharge which was smelly. She further stated that the victim’s vaginal wall was tender, inflamed and reddened with high epithelial cells a sign of trauma or penetration. She also explained the presence of spermatozoa may or may not rule out penetration and to support this position the Respondent relies on the Court of Appeal decision on Benjamin Mwangi & another v Republic [1984] eKLR where the Court held: -“The doctor’s evidence did no more than support C’s evidence that she had had sexual intercourse. His conclusion was based on the finding of spermatozoa on a specimen of C’s vagina which was examined at a laboratory. The presence of spermatozoa alone in a woman’s vagina is not conclusive proof that she has had sexual intercourse nor is the absence of spermatozoa in her vagina proof of the contrary. What is required to prove that sexual intercourse has taken place is proof of penetrate.”

29. The Respondent also cites the case of CMM v Republic (2022) eKLR where the Court held: -“37. From the medical evidence adduced, there was evidence of redness and tenderness of the vagina which serves as proof that an act of sexual assault may have taken place subject to proof by other corroborative evidence. In any event, penetration can be proved circumstantially taking into account circumstances under which the act was committed.”

30. On the element of positive identification of the perpetrator, the Respondent submits that the incident happened in broad day light and that the victim was used to seeing the Appellant in his business spot during her regular visit to Clinic and there was therefore no need for an identification parade since identification was by way of recognition. They argue that identification by recognition does not have to be by name and place reliance in the Court of Appeal decision in Juma Said Wanje v Republic (2020) eKLR in that regard where the Court held: -“16. On our own summation of the evidence regarding identification of the appellant, there is no doubt that both PW1 and PW3 saw him with the child at different times. According to PW3, she saw the appellant defiling the child inside a house that was under construction. The evidence of PW3 reveals that at the material time she did not know the appellant’s name but all the same she was positive that the person she had seen was the appellant.

…. PW1 told the police that she knew the person who had defiled her child. The child told the police that she had been defiled by a person well known to her. 18. We agree with the learned judge that the appellant was positively identified as the person who defiled PW1’s child.”

31. On whether the charge sheet was defective the Respondent submits that no evidence was tendered to the effect that the children who pulled the complainant had a common intention with the Appellant.

32. On the sentence of the Appellant, the Respondent submits that sentencing is at the discretion of the Court and in this case the discretion was properly exercised since the Appellant was not remorseful for his actions.

Issues, Analysis and Determination 33. Looking at the grounds of appeal, the evidence on record and the Submissions by the parties, and as alluded to hereinabove, the Court discerns the following issues to isolate for determination: -a.Whether the prosecution proved the offence of defilement beyond reasonable doubt against the appellant?b.Whether the trial court relied on a defective charge sheet to convict the appellant?c.Whether the trial court relied on inconsistent evidence to convict the appellant?d.Whether the sentence meted on the appellant was excessive and/or harsh?

Analysis Whether the prosecution proved the offence of defilement beyond reasonable doubt against the appellant 34. From the definition of defilement under section 8 of the Sexual Offences Act No. 3 of 2006, the three elements of defilement are established to be age of the victim, penetration and positive identification of the perpetrator.

35. The age of the victim appears not be in contest. Regardless, PW4, the Investigation Officer produced the victim’s Birth Certificate as PEXH 4 which showed that the victim was born on 6/11/2008 and since the incident occurred on 4/6/2022, the victim was thirteen years of age as at the date of the incident.

36. On the element of penetration, the Appellant contests that this element was not proved for the reason that since the incident occurred on a rainy day and the victim alleged to have been pinned on the ground, her clothes would certainly have mud and grass and the same was not produced in Court, no spermatozoa was present in the victim’s vagina, and since the victim was HIV positive, the Appellant has carried out several HIV tests which have returned negative.

37. The victim detailed how she was coming from the Hospital and passed by the Appellant’s gate where he usually sells sugarcane and charcoal when he remarked ‘toto kuja’ and she ran away. Some children pursued her, caught up with her and dragged her to the Appellant who in turn dragged her to his house which was by the roadside. He then removed his trousers, rolled her skirt down, pinned her to the ground and then raped her. It had rained that day and the grounds were wet. PW1 was adamant that her clothes were soiled and that by the time PW2 came home she had not bathed. The home in which the incident was alleged to have occurred was painted to be by the side of a busy road and neighboured by other homesteads including institutions yet nobody heard the victim wail nor ever so the molestation. In addition, the victim insisted that she wore a watch and timed the duration of the assault to have been two hours yet no spermatozoa could be detected even with high vaginal swab.

38. While it is the stipulation of Section 124 of the Evidence Act that the evidence of a victim in a sexual offence case needs no corroboration whenever the Court is satisfied that the victim is telling the truth, here the evidence of the victim was not consistent and appeared to be choreographed. The presence of multiple bruises and tenderness of the vaginal wall with a smelly whitish discharge could only be a corroboration of cogent and credible evidence by the victim. Moreover, it was the evidence of the Clinician that the vagina when scratched with the finger would be inflamed and reddened. The trial Court appears to have been persuaded that the presence of epithetical cells was evidence of penetration without interrogating and establishing the occurrence of such cells in different parts of the human body.

39. In the understanding of the Court is that epithelial cell are naturally occurring and any instrumentation of the vagina will present their presence in the orifice. It is never an indubitable evidence of culpable penetration.

40. Against that evidently and critically suspect evidence on the involvement of the Appellant in the crime, he let evidence, which remained unassailed that he was not at the scene of the incident. In disbelieving that evidence, the trial Court was of the view that the same was brought too late in the day. That was an erroneous finding. An analysis of the cross examination of the victim, her guardian and the Investigating Office show that from the beginning the Appellant was asserting having been not involved.

41. It is thus the finding by the Court that there was doubt as to whether the victim was indeed penetrated and if so if the Appellant was the perpetrator. The Court is bound by the position of the law that in such circumstances, the doubt is resolved in favour of the accused.

42. Up to this juncture, the Court should pen off but there are two issues that were urged very passionately by the Appellant and it is only fair that such passion is not left unappreciated.

Whether the trial court relied on a defective Charge Sheet to convict the Appellant 43. It is the provision of section 214 of the Criminal Procedure Code, CAP 75 Laws of Kenya, that a Charge Sheet is said to be defective where there is a variance between the charge and the evidence. The Appellant contends that while he was charged with the offence of defilement, the evidence tendered by the prosecution indicated that the victim was accosted by two boys, who dragged him to the Appellant and that the correct charge ought to have been gang defilement contrary to section 10 of the Sexual Offences Act No. 3 of 2006. To this Court, defilement and gang defilement is indeed one offence with the difference being the number of perpetrators involved. For a defect in a Charge Sheet to negate a conviction, the defect must have visited a prejudice upon the Accused by rendering unable to understand the accusations to be able to properly defend himself; that the offence charged is not known in law or that the evidence led is at variance with the charge preferred. The Court of Appeal in Peter Ngure Mwangi v Republic [2014] eKLR, while quoting a previous decision with approval said: -“A charge can also be defective if it is in variance with the evidence adduced in its support...The question therefore is, did this defect prejudice the appellant as to occasion any miscarriage of justice or a violation of his fundamental right to a fair trial? We think not. The charge sheet was clearly read out to the appellant and he responded. As such, he was fully aware that he faced a charge of robbery with violence. The particulars in the charge sheet made clear reference to the offence of robbery with violence as well as the date the offence is alleged to have occurred. These particulars were also read out to the appellant on the date of taking plea.”

44. Without the Appellant having been misled, no prejudice was visited upon him to warrant interfering with a validly entered conviction. In this case, however, this conclusion become moot on the face of the finding by the Court that the conviction was unsafe.

45. With the finding that the conviction is untenable, even the question of the harshness or excess of the sentence becomes superfluous. It is, however, necessary to reiterate that an appellate Court may only interfere with a sentence imposed by the trial Court it is evident that it overlooked some material factor, took into account some immaterial factor, acted on a wrong principle or the sentence is manifestly excessive in the circumstances of the case. See Wanjema v Republic Criminal Appeal No. 204 of 1970 (1971) EA 493, 494. In addition, and by dint of article 50 (2) q of the Constitution, the trial Court was bound to give to the Appellant the benefit of the least of the prescribed sentence. Consequently, had the appeal failed, the Court would have been inclined to mete out the minimum sentence under the statute.

46. Accordingly, and flowing from the reasons set out above, the appeal succeeds in entirety in that the conviction is quashed and sentence of thirty years’ imprisonment is set aside. Let the Appellant be set free forthwith unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 9TH DAY OF NOVEMBER, 2023PATRICK J. O. OTIENOJUDGEIn the presence of: -Appellant in personMs. Chala for the RespondentCourt Assistant: Polycap