[2017] KEHC 449 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL APPEAL NO. 63 OF 2016

JOSPHAT KIBET KORIR................................APPELLANT

VERSUS

REPUBLIC.....................................................................STATE

(Appeal from the Judgment of the Chief Magistrate’s Court at

NakuruHon. R.Amwayi Nyaga– Resident Magistrate delivered

onthe 29thMarch, 2016 in CMCR Case No.1038 of 2014)

JUDGMENT

The appellant JOSPHAT KIBET KORIR has filed this appeal challenging his conviction and sentence by the learned Resident Magistrate sitting at the Molo Law Courts.

The appellant had been arraigned before the trial court on 22/4/2014 facing a charge of DEFILEMENT OF A GIRL CONTRARY TO SECTION 8(1) as read with SECTION 8(4) OF THE SEXUAL OFFENCES ACT, 2006. The particulars of the charge were that

“On the 6th day of April 2014 in Londianu District of Kericho County intentionally and unlawfully caused his penis to penetrate the vagina of N C K a girl aged 17 years”.

In addition the appellant faced an alternative charge of INDECENT ACT WITH A GIRL CONTRARY TO SECTION 11(1) OF THE SEXUAL OFFENCES ACT, 2006.

The appellant pleaded ‘Not Guilty’ to both charges and his trial commenced on 5/8/2014. The prosecution called a total of five (5) witnesses in support of their case.

The complainant N C told the court that on 6/4/2014; she was on her way home from church with one ‘Kipchirchir Rotich’. The two decided to take a short cut and on the way they met the appellant in the company of two other boys.

The appellant began to beat the complainant’s companion. The complainant ran away but unfortunately she fell down and the appellant caught up with her. He pulled her deeper into the forest where he pushed the complainant onto the ground and proceeded to rape her.

After the assault the complainant went and reported the matter to the village elder. She was taken to hospital for treatment. The incident was then reported to police who arrested the appellant. He was eventually taken to court and charged.

At the close of the prosecution case the appellant was found to have a case to answer and was placed onto his defence. The appellant opted to give a sworn defence in which he denied having defiled the complainant. The appellant told the court that the complainant was his girlfriend and that they had consensual sex.

On 29/2/2016 the learned trial magistrate delivered her judgment in which she convicted the appellant on the main charge of Defilement and thereafter sentenced him to serve twenty (20) years imprisonment. Being aggrieved the appellant filed this present appeal.

The appellant who was not represented by an advocate during the hearing of his appeal opted to rely entirely upon his written submissions which had been duly filed in court. MR. CHIGITI learned State counsel made oral submissions opposing the appeal.

This being a first appeal the court is obliged to re-examine the entire prosecution case and draw its own conclusions on the same. In AJODE Vs REPUBLIC 2004 2 KLRit was held that

“In law it is the duty of the first appellate court to weigh the same conflicting evidence and make its own inferences and conclusions but bearing in mind always that it has neither seen nor heard the witnesses and make allowance for that”

In any charge of defilement the prosecution must adduce evidence to prove beyond reasonable doubt the following three ingredients of the offence;

1. Age of the victim

2. Fact of Penetration

3. Identity of the perpetrator

The age of the victim in a case of defilement is a critical issue which requires proof beyond reasonable doubt as that age will determine the sentence to be imposed if a conviction is rendered.

In this case the complainant told the court that she was 18 years old and was a Form 2 student at [particulars withheld]. The complainant was stating her age as of March 2015 when she was testifying in court. The incident in question occurred on April 2014 a year prior to the date when the complainant was testifying in court – thus at the time of the incident the complainant must have been 17 years old.

PW5 PC JUSTUS MOSOTI who was the investigating officer produced in court a copy of the complainant’s birth certificate as an exhibit P. exb 2. The document indicates that the complainant was born on 19th August, 1997. The birth certificate is a government issued document and provides conclusive proof of the age of the complainant. Having been born in August, 1997 the complainant was aged 17 years in March, 2014 when this incident occurred. I am therefore satisfied that complainant was a minor at the time of this incident.

In her evidence the complainant stated that as she was walking home from church three men accosted her and her companion PW2. The complainant tried to escape but unfortunately she fell down and one of the men caught her. The man pulled her deep into the forest. He forced her to lie on the ground and proceeded to defile her.

PW2 told the court that he was with the complainant as they left church. He confirmed while taking a short cut through the forest they were accosted by the appellant. The appellant assaulted PW2 and he ran away leaving the complainant behind. PW2 confirms that the man continued to chase the complainant.

PW4 REUBEN KIMUTAI ROTICH was the area assistant chief. He told the court that the complainant came to his office crying hysterically that very day. She informed PW4 that she had been raped. PW4 escorted her to hospital.

PW3 DR. WAMBURIU testified regarding the medical examination conducted upon the complainant. The findings of the doctor were as follows:-

“The genitalia was reddish, hymen was reddish. There were bruises along the vaginal walls. There was whitish discharge on the vaginal area”

The doctor concluded that penetration had occurred. This was expert medical evidence which proved beyond reasonable doubt that penetration had occurred.

The complainant identified the appellant as the man who defiled her. PW2 also identifies the appellant as the man who chased them while they were walking home from church. The incident occurred at lunch time in broad day light. The witnesses had ample time and opportunity to see the appellant well.

It is pertinent to note that in his defence the appellant readily concedes that he did engage in sexual intercourse with the complainant. Based on his own admission I find that it was the appellant who defiled the complainant on that day.

The appellant in his defence denied that his actions of intimacy with the complainant constituted the offence of defilement. The appellant claims that the complainant had been his girlfriend for 3 months and that they regularly engaged in sexual intercourse. He insists that the sex was consensual. The appellant further claims that he thought the complainant was an adult as she had informed him that she was 23 years old.

The appellant did not during cross-examination put to the complainant that she was ever his girlfriend. Nor did he put it to her that she had given her age as 23 years. The failure to cross examine on these crucial issues persuades me that this defence was nothing more than an after-thought. The birth certificate provides incontrovertible proof that the complainant was a minor. She was a secondary school pupil and I find nothing to show that she ever claimed otherwise.

Further if as the appellant claims, he and the complainant were friends, why did he have to accost her, and drag her into the forest to engage in intimate relation. This is not the behavior of a man who is seducing his girlfriend.

Finally contrary to the appellant’s claim that the sex was consensual the medical evidence gives a different picture. The doctor noted bruises on the vaginal wall and concluded that ‘there was forced penetration on the complainant’. This is clear proof that the sexual intercourse was not consensual. PW4 told the court that the complainant came to his office ‘crying hysterically’and reported that she had been defiled. If the appellant was her boyfriend why would the complainant have reported the matter to the chief?

I find no merit in the appellant’s defence. It is clearly a tale he has fabricated in an attempt to get himself off the hook. I dismiss the defence in its entirety.

On the whole I find that the prosecution mounted as overwhelming case. The guilt of the appellant was proved beyond reasonable doubt. His conviction was sound and I do uphold that conviction.

After conviction the appellant was allowed an opportunity to mitigate. The trial court then sentenced him to serve twenty (20) years imprisonment. Section 8(4) of the Sexual Offences Act provides for a minimum mandatory sentence of fifteen (15) years when one is convicted of defiling a girl aged 16-18 years. There was no aggravating factor to warrant the stiffer sentence. I therefore set aside the 20 year term imposed upon the appellant by the trial court and in its place I substitute the legal minimum sentence of fifteen (15) years. This sentence will run from the date when the appellant was convicted in the trial court. To this extent only does the appeal succeed.

Dated and delivered in Nakuru this 3rd day of November, 2017

Appellant in person

Mr. Motende for DPP

Maureen A. Odero

Judge