[2023] KEHC 25816 (KLR)

JZO v Republic (Criminal Appeal E004 of 2022) [2023] KEHC 25816 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25816 (KLR)

Republic of Kenya

In the High Court at Voi

Criminal Appeal E004 of 2022

GMA Dulu, J

November 21, 2023

Between

JZO

Appellant

and

Republic

Respondent

(From the conviction and sentence in Sexual Offence Case No. E017 of 2021 at Wundanyi Law Courts delivered on 16th September 2021 by Hon. E. M. Nyakundi (RM)

Judgment

1. The appellant was convicted of defilement contrary to Section 8(1) as read with section 8(2) of the Sexual Offences Act No 3 of 2003, and sentenced to 30 years imprisonment.

2. Dissatisfied with the conviction and sentence, he has come to this court on appeal and relied on the following amended grounds of appeal:-1. The learned trial Magistrate erred in law and facts by failing to appreciate that the competence of PW1 to testify was questionable and as such her evidence as adduced cannot form a basis for conviction.2. The learned trial Magistrate erred in law and fact by failing to find that PW1 had already been declared a vulnerable witness and an intermediary appointed to testify on her behalf thus the act of allowing PW1 to testify was unlawful as the court had not rescinded on its decision to declare PW1 a vulnerable witness.3. The learned trial Magistrate erred in law and in fact by failing to appreciate that the evidence of PW1 which was not given under oath was not subjected to cross-examination.4. The learned trial Magistrate erred in law and in fact by failing to appreciate that penetration was not proved to have occurred as required in law.

3. The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by the appellant as well as the submissions filed by the Director of Public Prosecutions.

4. This being a first appeal, I am required to evaluate all the evidence on record afresh and come to my own independent conclusions and inferences but bear in mind that I did not have the opportunity to see witnesses testify to determine their demeanour – see Okeno v Republic (1972) EA 32.

5. At the trial, the prosecution called four (4) witnesses. On his part the appellant tendered an unsworn defence statement, and did not call any additional witness.

6. The appellant has raised both technical and substantive grounds of appeal. The first ground I will deal with was the admissibility of the evidence of the complainant PW1

7. Having perused the record, I find that PW1 was a child of tender years said to be 6 years old. Initially she was not able to testify with consistent evidence, and was taken for psychiatric examination and report. She was also subjected to examination and filing of a report by the Children Officer, and she later testified.

8. In my view, the record was clear that initially PW1 was not able to testify coherently and was stood down. Maybe she was scared. Later she testified, not through an intermediary as the appellant says, but on her own. She was not sworn and not cross-examined.

9. In accordance with the law, the unsworn evidence of PW1 is admissible in evidence but has less weight than that of sworn evidence. The fact that PW1 was not cross-examined did not make her evidence inadmissible. I dismiss that ground.

10. With regard to the proof of the age of the complainant, she did not know her age. She was in PP1. The grandmother PW3 JLA also did not testify to the age of the complainant. She however stated that PW1 previously used to be a playful child and later changed behaviour. It was PW4 Dr. Yusuf Juma who testified that PW1 was 8 years old.

11. In my view, with all the evidence on record, which is not doubted by the appellant who knew the complainant as well as a granddaughter, the Magistrate also having seen the complainant, I find that the complainant PW1 was 8 years old at the time of the alleged incident, as that was the age proved by the prosecution beyond any reasonable doubt.

12. With regard to sexual penetration, the complainant testified in evidence that she was sexually penetrated. The medical evidence of PW4 was that the hymen was missing with bruises in the labia majora and labia minora.

13. I find that the prosecution proved beyond reasonable doubt that PW1 had been sexually penetrated.

14. Was the appellant the culprit? The complainant PW1 says so. PW2 Jones Obanga Wetuyi the village elder testified that the sexual complaint herein and involvement of the appellant was reported to him.

15. He stated that on arrival at the rented residence, the complainant told him “babu amenishika amenifanyia tabia mbaya na kunitoa nguo.”

16. To this damaging evidence, the appellant did not ask PW2 any questions. On his part, the appellant tendered unsworn defence testimony blaming two neighbouring women for implicating him, while PW2 said that the complainant narrated the incident and involvement of the appellant to him, but the appellant did not ask PW2 any questions.

17. In my view, from the evidence on record, the prosecution proved beyond reasonable doubt that the appellant was the culprit as the evidence of PW1 is believable in terms of the provisal to Section 124 of the Evidence Act (Cap.80).

18. The sentence is a lawful sentence. I will thus uphold the same.

19. For the above reasons, I find no merits in the appeal. I dismiss the appeal and uphold both the conviction and the sentence of the trial court. Right of appeal explained.

DATED, SIGNED AND DELIVERED THIS 21ST DAY OF NOVEMBER 2023 VIRTUALLY AT VOI.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantMr. Sirima for StateAppellant