[2023] KEHC 25182 (KLR)

Kalimbo v Republic (Criminal Appeal E049 of 2022) [2023] KEHC 25182 (KLR) (8 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25182 (KLR)

Republic of Kenya

In the High Court at Voi

Criminal Appeal E049 of 2022

GMA Dulu, J

November 8, 2023

Between

Ali Ndaro Kalimbo

Appellant

and

Republic

Respondent

(From the conviction and sentence in Sexual Offence Case No. E049 of 2022 at Voi Law Courts delivered on 26th July 2022 by Hon. C. K. Kithinji (PM))

Judgment

1. The appellant was charged in the Magistrate’s court with defilement contrary to section 8(1) as read with section8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that on diverse dates between April 2021 and June 2021 at about 1900hours within Taita Taveta County intentionally and unlawfully caused his penis to penetrate the vagina of MGC a child aged 15 years.

2. In the alternative, he was charged with committing an indecent act with a child act contrary to section 11(1) of the Sexual Offences Act, the particulars of which being that on the same diverse dates and at the same place intentionally and unlawfully touched the vagina of MGC a child aged 15 years with his penis.

3. He denied both charges. After a full trial, he was convicted of the main count of defilement and sentenced to 15 years imprisonment.

4. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal on the following grounds:-1. The Magistrate erred in law and facts by failing to appreciate that penetration was not proved to have occurred as required by law.2. The Magistrate erred in law and facts by failing to find that DNA evidence was not produced by the maker as per the dictates of section 48 of the Evidence Act.3. The learned Magistrate erred in law and fact by failing to appreciate that the prosecution did not prove the case beyond reasonable doubt.4. The sentence imposed was harsh and excessive since it was applied in mandatory terms as provided by statute without considering the appellants mitigation or unique facts and circumstances of the case.5. 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.6. As a first appellate court, I am duty bound to evaluate all the evidence on record afresh and come to my own independent conclusions and inferences – see OkenovRepublic(1972) EA 32. 7.At the trial, the prosecution called four (4) witnesses. The appellant on his part, tendered sworn defence testimony and did not call any additional witness.8. The elements of the offence of defilement for which the appellant was convicted are the age of the victim, the fact of sexual penetration, and thirdly the identity of the perpetrator.9. With regard to the age of the victim, she testified as PW2 MNZC. She stated that she was 16 years, and relied on a birth certificate. PW3 HNC her father also said that PW2 was 16 years old. The birth certificate was produced as an exhibit by PW4 Sgt. Sirengo Aggrey.10. In my view, from the evidence on record, the age of the victim, PW2 was proved beyond reasonable doubt to be 15 years as at the time of the alleged incident.11. I now turn to the element of sexual penetration. On this element, I note that PW2 the victim stated that someone had sex with her one day when she went to fetch water from a borehole. It was in the bush and she did not remove her pant. It was 6p.m.12. The medical evidence from PW1 Joto Nyawa (MOH) was that the hymen of PW2 was missing and she was 30 weeks pregnant.13. In my view, the prosecution proved beyond reasonable doubt that PW2 was sexually penetrated.14. With regard to the culprit, I find that the prosecution did not prove beyond reasonable doubt that the appellant was the culprit. This is because though the charge sheet talks of diverse dates, the victim PW2 only testified to a sexual encounter with the appellant on one occasion, which is a major contradiction.15. Secondly, the results of the DNA test on which the trial court relied upon heavily to find that the appellant was the culprit, did not meet the requirements of properly produced evidence under the Provisions of section 77 of the Evidence Act (cap 80). The method used by the prosecution to produce the Government Analyst’s report in court, wherein nobody took responsibility for that document rendered that documentary evidence to be hearsay evidence. Such evidence could thus not be relied upon to found a conviction, or to make a finding that the appellant was the perpetrator of the sexual penetration herein. On that account also, I will allow the appeal.16. Consequently, and for the above reasons, I allow the appeal, quash the conviction and set aside the sentence. I order that the appellant be set at liberty unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED THIS 8TH DAY OF NOVEMBER 2023 AT VOI IN OPEN COURT.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantAppellantMr. Sirima for the State