[2022] KEHC 11929 (KLR)

JTE v Republic (Criminal Appeal E017 of 2021) [2022] KEHC 11929 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11929 (KLR)

Republic of Kenya

In the High Court at Marsabit

Criminal Appeal E017 of 2021

JN Njagi, J

June 9, 2022

Between

JTE

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence by Mbayaki Wafula, SRM, in Marsabit PM`s Court SOA Case No.18 of 2019 delivered on 12/6/2020)

Judgment

1. The appellant was convicted of the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act 2006 and sentenced to serve 25 years imprisonment. The particulars of the offence were that on the July 25, 2019 at Loiyangalani sub-county within Marsabit county he unlawfully and intentionally caused his penis to penetrate the vagina of KEL, a child aged 7 years.

2. The appellant was aggrieved by the conviction and the sentence and filed the instant appeal. The grounds of appeal are:1. That the evidence adduced by the prosecution was unsatisfactory and contradictory.2. That the appellant was not identified as the perpetrator of the offence.3. That the investigations conducted in the case were shoddy in that no analysis of the blood that was on the clothing was done.4. That the trial court did not consider the appellant’s defence nor did it give consent reasons for rejecting the defence.

3. The brief facts of the case were that on the evening of the material day the victim herein who was PW1 in the case, was attending a Turkana traditional dance. She was in the company of a girlfriend, PW2, aged 5 years. That at 8pm a certain man approached them and offered to buy them sweets. He held their hands and pulled them away. PW2 managed to pull away. The man led the victim to a river bed. He removed her clothes and removed his. He inserted his penis into her vagina. She was screaming. They then heard footsteps of a person approaching. The assailant hit her and ordered her to keep quiet. He then picked his clothes and ran away. The girl was bleeding from the vagina.

4. Meanwhile, after the victim failed to return home from the dance, her mother PW3 and her father PW4 started to look for her. They did not find her until when she returned home at 3am. The mother realized that her dress was stained with blood. The victim narrated what had happened.

5. In the morning the parents took the complainant to Loyangalani Police station. PC Jones Mosomi PW7 commenced investigations on the case. He escorted the victim to Loyangalani Health Centre. She was examined by a clinical officer PW6 who found her with vaginal bleeding, broken hymen, swollen labia minora and majora, tear towards the anal region and dried blood on the thighs. The clinical officer made a finding that there was defilement using penis penetration. He completed a P3 form, Pexh 2, to that effect.

6. The complainant took policemen and other witnesses to the scene where they collected a fishing hook. They suspected that the assailant was a fisherman.

7. Later the complainant`s father received a call from a person called Edonga that there was a suspicious person at the shores of Lake Turkana. He went to the lake. He found a certain man, the appellant. He had a bundle of fish and a bundle of clothes. He realized that the clothes were stained with blood. The victim’s father suspected that he was the perpetrator. He called the police. PC Mosomi PW7 and a colleague went to the place and arrested the appellant. They confiscated his bag of clothes that were blood stained. He was taken to the police station. The victim was taken to the police station. She identified the appellant as the person who had defiled her. PC Mosomi also took possession of clothes from the victim that were blood stained. He charged the appellant with the offence.

8. In his defence the appellant told the trial court that on the July 26, 2019 he was at the lake at midday when policemen went to the store where he had kept his bag of clothes and enquired as to whom it belonged. He said that the bag was his. He was told to pour out the clothes. He did so and found that there were other clothes in the bag that belonged to a person called Lomoni. He told the police that some of the clothes belonged to Lomoni. The clothes for Lomoni were blood stained. He was taken to hospital for examination and then to the police station. A mother and her child went the police station and pointed at him while saying that he was the one.

Submissions 9. The appellant submitted that the trial court convicted him without satisfying itself that the evidence on identification was satisfactory. That the offence was said to have been committed at 2pm but no evidence was adduced as to the lighting that was available at the time. The appellant referred to the case of Charles O Maitanyi V Republic [1985] 2 KAR 75 where the Court of Appeal considered the kind of evidence expected to be adduced where identification takes place in difficult circumstances and held that:"It must be emphasized what is being tested is primarily the impression received by the single witness at the time of the incident of course, if there was no light at all, identification would have been impossible. As the strength of the light improves to great brightness so the chances of a true impression being received improve. That may sound too obvious to be said, but the strange fact is that many witnesses do not properly identify another person even in daylight. It is at least essential to ascertain the nature of the light available; what sort of light, its size, and its position relative to the suspect are all important matters helping to test the evidence with greatest care. It is not a careful test if none of these matters helping to test if none of these matters are known because they were not inquired into.There is a second line of inquiry which ought to be made, and that is whether the complainant was able to give some description or identification of his or her assailants to those who came to the complainant’s aid, or to the police. In this case no inquiry of any sort was made. If a witness receives a very strong impression of the features of an assailant, the witness will usually be able to give some description. If on the other hand the witness says that he or she could not identify the accused, the recognition must be suspect, unless explained. It is for the magistrate to inquire into these matters.”

10. The appellant also cited the case of Wamunga v Republic [1989] KLR 424 where the same court held that:“Where the only evidence against a defendant is evidence of identification on recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that circumstances of identification were favourable and free from possibility of error before court can safely make it a basis of a conviction.”

11. The appellant submitted that there was no identification parade conducted in the case. Further that there was no forensic evidence adduced in the case yet the prosecution suspected that the appellant`s clothes were stained with the blood of the victim.

12. The appellant submitted that the trial court failed to consider that he was 17 years old thus infringing his right on equal protection before the law as stipulated in article 27(1)(4) of theConstitution.

13. The appeal was opposed by the learned prosecution counsel, Mr WP Ochieng, who submitted that the charge against the appellant was proved beyond reasonable doubt. That the appellant was a person known to the victim. That the victim stayed with the appellant for a while and talked to him so that she was certain who the appellant was. That the evidence was one of recognition which was assuring and reliable.

14. Counsel submitted that the evidence of the victim was corroborated by PW2 who was also attending the traditional dance when the appellant approached the victim and left with her. That PW2 was very clear on the identification of the appellant and even knew his name. That the evidence of the two witnesses remained unshaken even upon rigorous cross-examination.

15. It was submitted that even though an identification parade was not conducted it was clear that the identification of the appellant was satisfactory. That the same was spontaneous, voluntary and emotional, a clear confirmation that it was genuine and honest. That the appellant was equally found with clothes that were bloodied and gave no proper explanation on the same. That though a DNA analysis was not done it could only have amounted to additional evidence that would have made the evidence better. That the evidence adduced in the case meets the threshold required in a criminal trial.

16. Counsel submitted that the age of the victim was proved by production of age assessment report and the evidence of the victim`s mother. That evidence of penetration was proved by the victim, her mother who noted that she was bleeding from her private parts and the doctor who confirmed conclusively that she had been penetrated.

17. It was submitted that the trial court considered the appellant`s mitigation and sentenced him to 25 years imprisonment instead of the possible life imprisonment. That the sentence was in accordance with section 2 of the Sexual Offences Act.

Analysis and Determination 18. This being a first appeal the duty of the court is to analyze and re-evaluate afresh the evidence adduced before the lower court and draw its own independent conclusions while keeping in mind that the trial court had the advantage of seeing and hearing the witnesses testify - see Okeno v Republic (1972) EA 32. In the case of David Njuguna Wairimu v Republic [2010] eKLR the Court of Appeal put this duty to be as follows:-“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.

19. The appellant challenged the judgment of the lower court on the grounds that his identification as the perpetrator of the offence was not satisfactory, that no identification parade was conducted to test whether the complainant was sure on her identification and that no forensic evidence was conducted to connect him with the offence.

20. The trial magistrate considered the issue of identification and held as follows:"PW1 and PW2 identified the accused as the person who lured them from the dance, that had (?) given them sweets. Accused was known to PW1 for a while, both saw him at the Turkana traditional dance….I have considered the totality of the prosecution evidence and the circumstantial evidence it put the accused at the scene of the crime and points otherwise than at the innocence of the accused."

21. The trial court therefore convicted the appellant for the offence, first, on the basis that he was identified by both the victim PW1 and her friend PW2, and secondly on the basis of circumstantial evidence. The trial magistrate however never stated the nature of the circumstantial evidence adduced against the appellant. In my examination of the evidence I do not find any circumstantial evidence in the case.

22. In her evidence in court, the victim PW1 testified that the appellant was a person well known to her. That he approached her while she was attending a Turkana traditional dance and offered to buy her sweets. That she accompanied him to the river bed where he defiled her. That she went home and reported the matter to her mother. That she described the appellant to her mother who took action by reporting the matter.

23. In cross-examination the witness stated as follows:"I knew the accused even before he touched me and defiled me. I know his name. I was told by my mother. It was night time when we went for the dance. The accused held me by the hand and took me away. There was my friend who saw the accused take me away."

24. The victim`s friend PW2 stated in her testimony that she was attending the dance with PW1. That the appellant approached them. He held them by their hands and led them towards the river. That she managed to let go but that PW1 proceeded with the appellant.

23. PW2 further stated that she and PW1 saw the appellant clearly though there were many people at the dance. That she had known the appellant very well for a while and that his name was Jame Tioko.

25. Though the victim PW1 stated in her evidence that she knew the appellant even before the date of defilement, she did no explain why she only gave his description to her mother yet she claimed to have known him before. She did not explain whether her mother gave her the name of the appellant before or after the incident. The victim was not asked how she had known the appellant if at all she knew him. In the premises, it was not clear whether the victim knew the appellant before the date of the incident.

26. Similarly, PW2 was not asked how or the circumstances that led to her knowing the appellant before the date of the incident. There was thereby no sufficient evidence that PW2 knew the appellant before the date of the incident.

27. Both PW1 and PW2 stated that it was night time when they were attending the dance. They however never gave indication as to the sort of night it was- whether it was a dark night or whether there was moonlight. They therefore never indicated how they were able to identify the person who led PW1 away as appellant yet it was at night. In the case of Wamunga v Republic (supra) the court emphasized that where the case against an accused person hinges on identification the court must examine the evidence carefully so as to be satisfied that the evidence is free from the possibility of error. In Maitanyi v Republic (supra) it was held that where identification is at night the evidence should be tested with greatest care and the court should inquire on the nature of light that was available, the sort of light, its size and its position relative to the suspect. That it is not a careful test if none of those things are known. In this case no evidence was brought out on the nature of light that enabled the witnesses to identify the appellant. Without such, the evidence cannot be said to be free from the possibility of error. There was thereby no evidence that the circumstances were favourable for positive identification. The evidence of PW1 and PW2 on identification was not safe to be the basis of a conviction on the appellant. The possibility of a mistaken identity has not been discounted.

28. There was no identification parade conducted after the arrest of the appellant so as to test whether the PW1 and PW2 could identify the appellant as the perpetrator of the offence. In John Mwangi Kamau v Republic [2014] the Court of Appeal stressed the importance of holding identification parades and held that:"Identification parades are meant to test the correctness of a witness`s identification of a suspect. See this court`s decision in John Kamau Wamatu v Republi, Criminal Appeal No 68 & 69 of 2008. "

29. The evidence of PW1 and PW2 was not tested in an identification parade on whether they were in a position to identify the appellant as the perpetrator of the offence. Failure by the investigating officer to conduct an identification parade left the evidence of PW1 and PW2 weak and unreliable to the extent that it was not sufficient to form the basis of a conviction.

30. The prosecution suspected that the blood stains that were found on the clothes that were found in the appellant`s bag were those of the victim, PW1. However, the investigating officer never collected blood samples from the appellant and did not thereby forward the clothes for forensic examination. This was a big blunder on the part of the investigating officer as this is the kind of evidence, if positive, that would have tended to link the appellant with the offence.

31. On my own independent analysis of the evidence, I find that there was no sufficient evidence pointing at the appellant as the perpetrator of the offence. The upshot is that the conviction is quashed and the sentence meted on the appellant set aside. I accordingly order that the appellant be set at liberty forthwith unless otherwise lawfully held.

DELIVERED, DATED AND SIGNED AT MARSABIT THIS 9THDAY OF JUNE 2022. JN NJAGIJUDGEIn the presence of:Mr Magero for respondentAppellant:- present in personCourt Assistant:- Peter14 days R/A.