[2022] KEHC 2981 (KLR)

Katamura v Republic (Criminal Appeal E009 of 2021) [2022] KEHC 2981 (KLR) (8 June 2022) (Judgment)

Neutral citation: [2022] KEHC 2981 (KLR)

Republic of Kenya

In the High Court at Marsabit

Criminal Appeal E009 of 2021

JN Njagi, J

June 8, 2022

Between

Boya Galgalo Katamura

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence in Marsabit PM`s Court SOA Case No.E013 of 2020 delivered by Hon. Collins Ombija, RM, on 4/8/2021)

Judgment

1. The appellant was convicted of the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No.3 of 2006 and sentenced to serve 20 years imprisonment. The particulars of the offence were that on the 13th December 2020 in Maikona within Marsabit County he intentionally and unlawfully caused his penis to penetrate the vagina of TBD, a child aged 13 years. The appellant was dissatisfied with the conviction and the sentence and filed the instant appeal.

2. The grounds of appeal are:1. That the learned trial Magistrate erred in matter of law and fact by failing to note that the prosecution case was not proved beyond reasonable doubt.2. That the learned trial Magistrate erred in law and fact by not observing that the evidence adduced by the prosecution witnesses was uncolloborated and inconsistent.3. That the learned trial Magistrate erred in law and fact by failing to note that there was a grudge between the appellant and the complainant’s relatives.4. That the learned trial Magistrate erred in law and fact by failing to note that the sentence was harsh and excessive in the circumstance of this case.5. That the learned trial Magistrate erred in law and fact by failing to note that the right of the appellant to fair trial was infringed.6. That the learned trial Magistrate erred in law and fact by rejecting the appellant’s defence without giving any cogent reason.

The Evidence 3. The brief facts of the case are that the complainant who testified as Pw1 in the case was staying with her mother PW2. That on the material day she was grazing the family goats in the bush. A person unknown to her approached her and started to interrogate her as to where she came from and whose daughter she was. She answered him. The person then got hold of her and dropped her to the ground. He removed her clothes, fished out his penis and inserted it into her vagina. He defiled her. She cried for help but nobody responded. After he finished he went away. The complainant went home and reported to her mother PW2. Her mother informed a person called Godana Sharam PW3. On the following day, the complainant, her mother, PW3 and other elders started to look for the person. Later they came across a person in a compound. The complainant identified him as the person who had defiled her. He was the appellant. They arrested him and took him to the police.

4. The case was investigated by PC Daniel Mugo PW5. He escorted the complainant to Marsabit County Referral Hospital where she was examined by a clinical officer PW4 who found her with a broken hymen. The clinical officer filled a P3 form to that effect. The appellant was charged with the offence. During the hearing in court, the clinical officer produced the P3 form and an age assessment report as exhibits, P.exh 1 and 2 respectively.

5. When placed to his defence the appellant stated that he was being framed. He denied that he committed the offence.

Submissions 6. The appellant was self-represented. He submitted that the prosecution had not proved the case against him beyond reasonable doubt. That the clinical officer who examined the complainant did not find any spermatozoa deposits and no DNA test was conducted to prove that he is the one who committed the offence. That the trial court failed to consider his defence that he was being framed due to a grudge between him and the relatives of the complainant. Further that the evidence adduced against him was inconsistent and uncorroborated. That there was violation of his right to fair trial during the hearing.

7. The state through the learned Senior Principal prosecution Counsel, Mr. W.P. Ochieng, submitted that all the salient elements of the offence of defilement were proved. That the age of the complainant was proved at 13 years by production of age assessment report which corroborated the evidence of the complainant`s mother that the girl was aged 13 years. Counsel submitted that the evidence of the mother was sufficient proof of the age of the complaint. In that respect he made reliance on the Court of Appeal decision in Richard Wahome Chege V Republic, Nyeri Criminal Appeal No. 61 of 20 14 where it was held that the evidence of a complainant`s mother was sufficient proof of age.

8. It was submitted that the appellant was identified by the complainant as the person who defiled her. That the trial magistrate believed the evidence to that end. That the magistrate had the advantage of observing the complaint first hand. That section 124 of the Evidence Act allowed the court to convict on the sole evidence of the complainant if it was convinced that her evidence was truthful. That the findings of the clinical officer corroborated the testimony of the complainant in that respect though the court can still convict without evidence of medical examination to support the charge.

9. Counsel submitted that the issue of there being a grudge between the appellant and the relatives of the complainant was not raised during the trial. That it is too late in the day to raise the issue now. That the defence raised by the appellant was a mere denial and there was no attempt to support his allegations.

10. Counsel further submitted that the trial was conducted in the language of the appellant`s choice, Gabra language. That at the start of the trial the court made an order for copies of charge sheet and witness statements to be served on the appellant. That the appellant fully participated in the trial and actively cross-examined the witnesses. That he did not raise any issue on the way the trial was conducted. Therefore, that the trial was conducted in a fair and just manner.

Analysis and Determination 11. This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu v Republic [2010] eKLR where the Court of Appeal stated that:-“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.

12. Similarly in the case of Okeno v Republic [1972] EA 32 where the Court of Appeal set out the duties of the appellate court as follows:-“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post (1958)EA 424. ”This was also set out in the case ofKiilu & Another v Republic (2005) KLR 174.

13. The appellant challenged the conviction on the ground that the evidence was not corroborated by medical evidence as no spermatozoa were found and no DNA profile was carried out to link him with the offence. The clinical officer who examined the complainant found her with a broken hymen. He however did not say whether the same was freshly broken. There was thereby no medical evidence to support defilement.

14. However, there is no requirement in law for the offence of defilement to be corroborated by medical evidence so as to sustain the charge as the offence may be proved by other ways such as the evidence of the victim or by circumstantial evidence. This was the position taken by the Court of Appeal in Kassim Ali v Republic (2006) eKLR where it held that:“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.”

15. In AML v Republic (2012) eKLR (Mombasa), the same Court held the view that:“The fact of rape or defilement is not proved by way of a DNA test but by way of evidence.”

16. Further guidance on the issue is found in the Ugandan case of Bassita v Uganda S. C. Criminal Appeal No. 35 of 1995 where the Supreme Court held that:“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”

17. In the Kenyan context, corroboration is not mandatory in sexual offences involving minors as section 124 of the Evidence Act allows a court to convict on the sole evidence of the minor where the court is satisfied that the minor is telling the truth. In J. W. A V Republic(2014)eKLR, the court held that:-“It is now settled that the courts shall no longer be hamstrong by requirements of corroboration when the victim of a sexual offence is a child of tender years if it is satisfied that the child is truthful.”In the premises, the trial court could convict in the absence of medical evidence if the court was satisfied that the minor was telling the truth.

18. The appellant contended that the charges were a frame up due to a grudge between him and the complainant`s family members. However, the appellant never raised the issue of the grudge in his defence in court neither did he allude to it when he cross-examined the complainant and her mother. The complaint only alleged that the case was a frame up but he did not give any explanation as to why this was so. He cannot give the explanation during the hearing of the appeal.

19. Though the appellant argued that the evidence from the prosecution witnesses was inconsistent, he did not cite any instances of inconsistency. Similarly, he made allegations of violation of his rights during the trial but made no attempt to explain how his rights were violated. I have gone through the whole record of the trial court and I cannot find any instance of violation of the appellant`s rights during the trial.

20. The elements of the offence of defilement that the prosecution is obligated to prove are the age of the victim, penetration on the victim and identification of the perpetrator. The complinant`s mother gave evidence that the complainant was aged 13 years. This was corroborated by the findings in the age assessment report, P.exh 2. The prosecution had thereby proved that the complainant in this case was aged 13 years.

21. The complainant gave evidence on how a person unknown to her accosted her, wrestled her to the ground and defiled her. From her narration of the incident, there was no doubt that she was defiled by a certain person. The question was whether the person who defiled her was the appellant.

22. It was the evidence of the complainant that when she reached home she reported to her mother that she had been defiled by a certain person whom she did not know by name but that she could identify him if she saw him. The complainant`s mother in her evidence confirmed that this is what the complainant reported to her.

23. It was the evidence of the complainant, her mother PW2, and PW3 that on the following day they went around looking for the suspect and that they found the appellant in a certain compound. That when the complainant saw him, she identified him as the person who had defiled her.

24. The complainant is the only identifying witness in the case. The law is that where the only evidence on identification is that of a single witness the trial court should warn itself of the danger of convicting on such evidence but only convict if it is convinced that the evidence is credible. This requirement was discussed by the Court of Appeal in in the case of Maitanyi v R [1986] KLR where it was held as follows:“(1)A fact may be proved by the testimony of a single witness but there is need to test with the greatest care such testimony in order to determine whether such a witness was able to make a true impression and description of the suspect.(2)The factors to be inquired into are the nature of the light available, its size and its position relative to the suspect.(3)The court must warn itself of the danger of relying on the evidence of a single identifying witness, which warning must be administered before a decision to act on such evidence is made and not thereafter….”

25. In the instant case the complainant did not tell the court how she managed to identify the appellant as the person who defiled her. She was not asked on whether there were any special features that made her identify the appellant. The complainant`s mother PW2 and the other witness PW3 did not tell the court whether the complainant had given them the description of the suspect that enabled her to identify him when she saw him. The trial magistrate in his judgment did not address his mind on whether the complainant had sufficiently identified the appellant during the ordeal. Neither did he warn himself of the danger of convicting on the evidence of a single identifying witness. Though the offence took place during the day there was the danger of mistaken identity. This could be so when the evidence of the complainant on identification of the appellant was not tested.

26. The appellant`s defence was that the case was a frame up. It is evident from the judgment of the trial magistrate that he did not make any finding on the credibility of the complainant. He did not give reasons as to why he thought her evidence should be relied upon to convict the appellant. In face of the fact that the evidence on identification was inadequate, it could be that the appellant was mistakenly identified as the perpetrator of the offence.

27. The up shot is that the case against the appellant was not proved beyond reasonable doubt. The appeal is thus merited. The conviction entered on the appellant by the lower court is therefore quashed and the sentence meted on him set aside. I accordingly set the appellant at liberty forthwith unless otherwise lawfully held.

DELIVERED, DATED AND SIGNED AT MARSABIT THIS 8TH DAY OF JUNE 2022. J.N. NJAGIJUDGEIn the presence of:Mr. Magero for RespondentAppellant:- Present in personCourt Assistant:- Peter14 days Right of Appeal.