[2017] KEHC 4465 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAROK

CRIMINAL APPEAL NO. 27 OF 2017

[From the original conviction and sentence in Narok Chief Magistrate’s

courtCriminal Case No. 2087 of 2014, R.V. Joseph Lodiaka]

JOSEPH LODIAKA.................................APPELLANT

Versus

REPUBLIC.............................................RESPONDENT

JUDGEMENT

1. The appellant has appealed against his conviction and sentence of 20 years imprisonment contrary to section 8 (1) (3) of the Sexual Offences Act No. 3 of 2006, which was imposed against him by the court of the Senior Principal Magistrate on 8th May, 2015 at Narok. The state supported both conviction and sentence.

2. The complainant (PW1) was a child of tender years, who gave sworn evidence after being subjected to voire dire examination. She testified that on 11th December 2014, she was with the appellant in her mother’s hotel. The appellant was a former employee in that hotel which was run by her mother. She further testified that the appellant requested her to assist him in forgetting his former wife after he was granted a divorce. The PW1 testified that his male organ was erect. In response the complainant refused to assist the appellant. Thereafter, the appellant asked the complainant to escort him to his house and she agreed.

3. While on the way the appellant pushed her to the ground and proceeded to remove his trouser, he proceeded to remove the complainant T-shirt and her underwear. He then lowered his trouser and forcefully had sexual intercourse with her. After he was through with the sexual intercourse, he warned the complainant not to tell anyone or else he kills her. She further testified that the complainant got up and went to his house. PW1 then went back to the hotel. According to her the time was 9:00 p.m. and not 3:00 a.m. She then closed the hotel and went to sleep in her parent’s house and did not tell anyone.

4. On 16th December, 2014 the appellant sent a text message via his phone to the complainant’s mother and as a result the mother questioned her concerning the sexual intercourse. Her mother then took her to the house of the appellant, who was then questioned about the sexual intercourse. The appellant in response denied having any sexual intercourse with the complainant. Under cross examination, the complainant testified that she had given the appellant Kshs.1,000/= at his request. She denied that her mother framed the appellant because of a dispute over that Kshs. 1,000/=. She also admitted that they had gone with their mother to the house of the appellant to demand the repayment of that Kshs.1,000/= , because her mother thought that her money was been stolen.

5. She denied being beaten by her mother, after receiving the text message (SMS). However, she admitted having been beaten by her mother on 16th December, 2014. She also admitted that she told her mother of the sexual intercourse with the appellant after she was beaten. She further admitted having sexual intercourse with the appellant after she had been beaten. It was also her evidence that she had denied having sexual intercourse with the appellant and had disclosed after she was beaten.

6. The complainant was taken to Narok County Referral Hospital being escorted by No.89053 PC (W) Lisa Muthangia (PW4), who was based in Narok Police Station and was the investigating officer in this case. In that hospital, the complainant was examined by Hillary Kiptoo (PW3) who was a clinical officer and the date of examination was 17th December, 2014. PW3 upon examining the complainant, he found that her genitalia looked normal. He found that her hymen was torn. He also found lacerations on the small labia menora. It was also his evidence that the hymen was not freshly torn. His other evidence was that the examination was done on 17th December, 2014 and the alleged offence took place on 11th December, 2014.

7. Furthermore, it was this Clinical Officer’s evidence that the examination came a bit late and ought to have been done within 72 hours of its occurrence. PW3 did not find any presence of sperms upon examining the complainant. Finally, PW3 carried an HIV test which was negative. He also carried out urine analysis which revealed that the complainant did not suffer from syphilis. He also carried out a pregnancy test which showed negative. He concluded from his examination that the complainant had been defiled and her laceration had healed.

8. The appellant gave sworn testimony in his defence in which he denied committing this offence. He called Rolands Saraton Tome (DW1) as his defence witness. DW1 was a lecturer at Maasai Mara University teaching in the department of Natural Resources Wildlife and Tourism. He confirmed that the appellant sat for his examinations on 11th December, 2014 and went further to specify the time when the appellant sat for his examination as follows:

1. “BTM 221 – Tourism product development was slated from 8:30 a.m. to 10:30 a.m.

2. BTM 218 – 2:00 p.m. to 4:00 p.m.”

It is important to point out that the times when the appellant sat for his examinations are crucial to this case, because his defence is that of an alibi. The examination time table and attendance sheets were put in evidence as defence exhibits Dexb 1 – 3. DW1 finally testified that the examinations in which the appellant sat for started at 2:00 p.m. and ended at 4:00 p.m. on the same day of 11th December, 2014.

9. The appellant gave sworn testimony in which he testified that he was a 2nd year student at Maasai Mara University studying for a course of Tourism Management. He further testified that on the material date during the night he went to the shop of K K Q (PW2) and found the complainant selling in that shop. He further testified that the complainant gave him Ksh.1,000/= and from there he proceeded to the adjacent boutique run by PW2. Thereafter he left and went away. He further testified that he sat for his examinations and in the evening he sent a short text message (SMS) to PW2 with a view to asking her for a meeting to discuss with her about what the boda boda man had revealed. It was his evidence that a boda boda man had told him that the aunt to the complainant had told him that the appellant had defrauded the shop of PW2 after befriending the complainant.

10. Furthermore, the appellant testified that at 1:00 am on 16th December 2014, the complainant (PW1), her mother (PW2) and her Aunt L M went to his house and they had a discussion. The discussion was in respect of Kshs.1,000/= which was taken from her shop. It was also his evidence that the mother of complainant asked him for Kshs.5,000/= to settle the issue but he did not have that sum of money. It is at that point in time that PW1 was beaten by her mother. He further testified that the complainant’s mother swore to take him to prison to have him punished. He also testified that his conscience was clear on the theft allegation. He agreed to go with them to Narok Police Station which he did voluntarily. He denied defrauding the shop of PW2 upon her arrival at Narok Police Station. He was arrested and put in police cells. He further testified that his request to be taken for medical attention at Narok District Hospital was rejected. He also testified that the evidence against him was fabricated by the mother of the complainant. The appellant further testified that PW1 had admitted being beaten twice by her mother and this he pointed out was clear from the statement of her mother at the police station.

11. The appellant further testified that the complainant’s mother had a grudge against him which he wanted the court to consider and decide favourably. It was also the evidence of the appellant that he did not understand why the investigating officer did not summon L M to testify. The appellant also questioned the failure of the doctor to prepare an examination flow sheet which is usually prepared before a medical report popularly known as P3 form is filled. It is his evidence that the failure of the doctor meaning the clinical officer to produce a statement notes in respect of complainant was suspicious.

12. Furthermore, in cross examination the appellant admitted having been employed by the complainant’s mother in her hotel where he worked for seven days only. He also admitted that they were in good terms with the complainant’s mother (PW2). He further admitted that he did not have any grudges with the complainant herself (PW1). He further admitted having met the complainant on the night of 11th December, 2014 and that is the night, when he is alleged to have defiled the complainant. He also admitted having been given Kshs.1,000/= as a free grant by PW1 and yet he knew that PW1 did not own the hotel.

13. The appellant originally raised seven grounds of appeal in his petition to this court which was filed on 19th May, 2015. Thereafter, he filed an amended petition of appeal which contains five grounds dated 14th June, 2016. In ground one, the appellant has faulted the trial court both in law and fact in convicting him on charges that were defective. In this regard it is important to refer to the charge of defilement as filed in court by the police. The charge shows that the appellant was charged with defilement contrary to section 8 (1) (3) of the Sexual Offences Act No. 3 of 2006. The provisions of that section clearly state that a person who commits an act which causes penetration with a child is guilty of defilement. This is statement of offence is crystal clear and is not defective in any way. This statement of the offence is followed by the supporting particulars of the offence. Those particulars alleged that on 11th December, 2014 at Total Estate in Narok County unlawfully and intentionally caused his male organ to penetrate the female organ of the complainant, who was aged 14 years.

14. Furthermore, the appellant was charged in the alternative count with committing an indecent act with a child contrary to section 11(1) of the Sexual Act No. 3 of 2006. The particulars of that offence allege that the appellant did on 11th December 2014, at Total area in Narok North District in Narok County did commit an indecent act with the complainant by rubbing his male organ against her female organ and that PW1 was a girl aged 14 years. It is clear that the two charges that were filed against the appellant specified the statement of the law that was allegedly infringed and the supporting particulars of those offences which indicated the date, place and the manner of defilement against the child of tender years, who was aged 14 years old.

15. In the circumstances, I find that the charges as filed are not defective and I find that this ground of appeal is without merit and is hereby dismissed. In ground two, the appellant has faulted the trial court both in law and fact for convicting him when his conduct was consistent with his innocence. I find from the evidence of the complainant that the appellant defiled her. There is medical evidence from the clinical officer, Hillary Kiptoo (PW3). The evidence of this clinical officer clearly shows that the hymen of the complainant was torn and that there were healed lacerations on the complainant’s labia menora.

16. The evidence of the clinical officer clearly indicated that the lacerations had healed and no treatment was extended to the complainant because of the lateness of complainant being taken for examination. Furthermore, the evidence of the appellant under cross examination was that he was in good terms with the complainant’s mother (PW2). He also admitted that he did not have any grudges against the complainant. While under cross examination he further admitted that the complainant gave him Kshs.1,000/= as a free grant and yet he admitted that the complainant did not own the hotel.

17. In the circumstances, I find that the evidence produced in the trial court was consistent with his guilt and not with his innocence. In the circumstances, I find this ground of appeal is without merit and is hereby dismissed. In ground three, the appellant has faulted the trial court both in law and fact in relying on evidence that was produced by hostile witnesses upon which the conviction was based. It is the appellant own evidence under cross examination that he did not have any grudge against the complainant and that the same complainant gave her a free grant of Kshs.1,000/=. It was also his evidence that he was in good terms with the complainant’s mother (PW2).

18. In the circumstances, I find that both PW1 and PW2 were not hostile witnesses, if anything they were witnesses who were friendly to the appellant. In the circumstance, I also find that this ground of appeal is without merit and I hereby dismiss it. In ground four, the appellant has faulted the trial court both in law and fact in accepting the report of his assessment of PW1’s age in evidence without complying with provisions of section 77(2) of the Evidence Act (Cap 80) Laws of Kenya. In this regard, I refer to the evidence of No.89053 PC (W) Lisa Muthangia, who was the investigating officer. It was her evidence that she took the complainant for age assessment at the hospital. It is this officer who put in evidence the age assessment report in evidence as prosecution exhibit 2.

19. In doing so, she invoked the provision of section 77 of the Evidence Act (Cap 80) Law of Kenya. It is clear that he did not cross examine this police officer in respect of that report. It would have been better if the trial court had given the appellant an opportunity to respond to the report, before it was put in evidence as a prosecution exhibit. Furthermore, there is evidence of the complainant that she was aged 14 years, when this offence was committed. There is further evidence from her mother (PW2) that the complainant was aged 14 years. This evidence on age was not challenged. I therefore, find that the report was properly put in evidence in accordance with provisions of 77 of the Evidence Act. In the circumstance, I find that this ground of appeal is without merit and is hereby dismissed.

20. In ground five, the appellant has faulted the trial court both in law and fact for dismissing his plausible defence which was consistent with his innocence. This ground of appeal is substantially similar to the 2nd ground of appeal which I have dealt with and dismissed as lacking in merit The reasons stated in dismissing ground two are hereby extend to cover ground five and for that reason I hereby dismiss ground five for lacking in merit.

21. The appellant has not raised any issue as regards his sentence of 20 years imprisonment in his amended grounds of appeal and for that reason I am not called upon to make any finding in that regard.

22. In the light of the foregoing, the appellant’s appeal is hereby dismissed in its entirety.

Judgement delivered in open court this 2nd day of February, 2017 in the presence of the Appellant and Mrs Nyaroita for Respondent.

J. M. Bwonwonga

Judge

2/2/2017