[2017] KEHC 4432 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CRIMINAL APPEAL NUMBER 234 OF 2015

CORAM: JUSTICE S.M GITHINJI

(From original conviction and sentence in criminal case number 1474 of 2015 the Principal Magistrate’s Court at Kimilili)

JOSEPH WEKESA SIMIYU::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

VERSUS

REPUBLIC::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

JUDGMENT

JOSEPH WEKESA SIMIYU faced in the lower court a main count of Defilement of a girl, contrary to section 8(1) (2) of the Sexual Offences Act no. 3 of 2006.

The particulars of this offence are that on the 21st day of October, 2013 at [paticulars withheld], within Bungoma County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of M W, a child aged 2½ years.

In the alternative he was charged with committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.

The particulars of the said offence are that on the 21st day of October, 2013 at [paticulars withheld] within Bungoma County, the appellant unlawfully and intentionally touched the vagina of M W, a child aged 2. 5.years with his penis.

The prosecution case is that V W (PW-2) is a mother of the twins namely M and S, who were born on 23. 10. 2010. On 21. 10. 2013 at around 9. 00am she was in her home at [paticulars withheld] washing clothes. The two twins were playing outside on the path. S went and told PW-2 that M had gone to Simiyu’s place. Simiyu’s place is about 70 metres from her home. Soon thereafter PW-2 heard M crying in the sugarcane farm. At the time she saw no one. The girl emerged from the sugarcane farm. M reported to her that Simiyu took her to the sugarcane and told her to lie on the ground. The mother asked her how she laid and she removed her clothes and lifted her dress. The mother examined her and noted semen oozing from her private parts. PW-2 saw Simiyu running away. She screamed heading towards her house. She found Simiyu there armed with a jembe. There were other people. He challenged PW-2 to go to his father and explain if he had defiled the child. PW-2 asked him why he was talking of defilement and she had not mentioned it.

An in-law took the jembe from Simiyu. The matter was reported to Kimilili Police Station. The complainant was issued with a P-3 and escorted to the hospital by PW-4. The said P-3 form was filled on 25. 10. 2013. The medical officer found that the complainant was in shock. The lower limbs were painful on touch. The private part had swollen and was painful on touch. There was no discharge in her inner wear. She had pus cells in the urine. It was concluded that she was defiled. On cross-examination the witness stated that,

“If the sex is penetrative, the hymen would be raptured. It was non penetrative defilement. He did not penetrate her genitalia. It was swollen. In brief there was no penetration; there was no discharge from the girl.”

The appellant was then arrested and charged. In his unsworn testimony in defense he stated that on 21. 10. 2013 he was burning charcoal. The mother of the complainant arrived and started shouting that he had defiled her daughter in the sugarcane. She took the jembe he had and ran away. The appellant’s father, the DW-2 in this case stated that he heard noises in his shamba. He went there and found the appellant chasing PW-2 demanding for his jembe. PW-2 asked the appellant what he had done to her child. The appellant said he was burning charcoal and had seen no child.

The trial magistrate evaluated the evidence, convicted the appellant on the main count and sentenced him to serve life imprisonment.

The appellant dissatisfied with the said conviction and sentence appealed to this court on the following grounds:-

1. That his mental status was not considered during the trial

2. That the prosecution evidence was contradictory and was not properly analyzed

3. That the proceeding violated his constitutional rights.

During the hearing of the appeal Mr. Kitui the Advocate for the appellant submitted that the appellant evidence was not weighed and that the prosecution evidence was contradictory and insufficient to warrant a conviction. He raised issues with the age of the complainant of which was said to be 2. 5 years. No age assessment was done, save for P-3 form which was produced in court as exhibit. Her ability or competency as a witness is also challenged. After the voire dire the court indicated she was incapable of understanding the proceedings but allowed her to testify.

The charge of defilement is equally challenged given that the medical officer indicated there was no penetration.

The state prosecutor concedes to the appeal on the grounds that the child was not penetrated of which is a crucial ingredient for the offence of defilement, and that though there was indication that the appellant was mentally unstable, and examination ordered by the court, the trial proceeded before confirming that he was fit to undergo trial.

I have re-evaluated the entire evidence. The voire dire conducted by the court is recorded as follows:-

“I am N. I go to school. This is my mother. She is called H.”

The court then ruled that:-

“The minor is just 2½ years and shall not be able to understand the proceedings or what is going on at all. The minor only gets alert at the mention of the mother’s name and shall give unsworn defence.”

The adopted procedure in voire dire and the ruling, and subsequent hearing of the child’s evidence failed to comply with the finding in Criminal Appeal number 34 of 2013, Kivevelo Mboloi versus Republic [2013]eKLR. The court held that voire dire is meant to find out whether the child is:

1. Intelligent enough to offer evidence

2. Whether the child understands the meaning of oath and thus should be sworn or simply appreciates the importance of telling the truth and should therefore adduce unsworn testimony.

The trial court failed to make a clear ruling on the two issues.

In the case of Johnson Muiruri versus Republic [1983] KLR 447 the court indicated clearly how a voire dire should be conducted. Questions and answers should be set out to the child and both recorded. This is not what happened in this case where only a few answers were recorded and the questions omitted. The court’s ruling which appears to be to the effect that the child was not intelligent enough to offer evidence, was disregarded since she was allowed to offer evidence of which was later weighed in the final judgment. Such was wrong.

For an offence of defilement, penetration must be established by the prosecution beyond reasonable doubt. Section 8(1) of the Sexual Offences Act indicates that:-

A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

PW3 the medical officer who examined the complainant indicated on cross examination that there was no penetration. The law is clear that where there is no penetration the offence can be any other but not defilement.

On 29. 10. 2013, the day the plea was taken, the court ordered that the appellant mental status be established by a doctor and a report be submitted to court. Later on 12. 11. 2013 the appellant’s father was in court and he indicated that the son was a mental patient. On 18. 11. 2013 the appellant collapsed in court and the court ordered that he be treated first. On 16. 12. 2013 Mr. Ingosi appeared for the appellant and he indicated that the appellant was not fit to stand trial. When the matter commenced hearing on 6. 2.2014, it was not ascertained that the appellant was fit to withstand the trial. The court may have proceeded with a case of a person who was incapable of understanding the trial of which amounts to a mistrial.

On the foregoing grounds, I do concede with parties in the case that the appeal is merited. It is allowed. Conviction and sentence quashed. The appellant be released forthwith unless otherwise lawfully held.

Judgment read in the presence of the state counsel, court assistant and the appellant this 17th day of July 2017.

S. M. GITHINJI

JUDGE