[2023] KECA 1594 (KLR)

Kathurima v Republic (Criminal Appeal 26 of 2017) [2023] KECA 1594 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KECA 1594 (KLR)

Republic of Kenya

In the Court of Appeal at Nyeri

Criminal Appeal 26 of 2017

W Karanja, J Mohammed & LK Kimaru, JJA

November 10, 2023

Between

Joseph Mutethia Kathurima

Appellant

and

Republic

Respondent

(Being an appeal against the judgment of the High Court of Kenya at Meru (W. Kiarie, J.) dated 19th December, 2016 in High Court Criminal Appeal No. 37 of 2016 Criminal Appeal 37 of 2016 )

Judgment

1. This is a second appeal arising from the judgment of the High Court of Kenya sitting at Nyeri at Nyeri (Kiarie, J.)

2. A background of this appeal is that the appellant was charged before the Principal Magistrate’s Court at Tigania in Criminal Case No. 817 of 2011 with the offence of defilement contrary to Section 8 (1) (2) of the Sexual Offences Act. The particulars of the charge alleged that on 6th August 2011 in Tigania West District within Meru County, the appellant defiled Y. N. the child, a child aged 8 years old. In the alternative, the appellant was charged with the offence of Committing an Indecent act ith a Child contrary to Section 11(1) of the Sexual Offence Act. The particulars of the charge were that on the same day and in the same place, the appellant committed an act of indecency with Y. N. by intentionally touching her vagina with his penis. The appellant denied both counts prompting the trial in which the prosecution called a total of nine (9) witnesses, while the appellant was the only defence witness.

3. The brief facts of the case are that on 6th August 2011, while PW1 was on her way back home from a river where she had been sent to fetch water, when she heard someone calling her. She however did not stop as she was in a hurry. PW1 testified that the appellant caught up with her. He grabbed her hand and placed her on the ground beside the road. He unzipped his pants and removed his penis. He then undressed her and inserted his penis in her vagina. PW1 stated that during the ordeal, the appellant covered her mouth with his hand. She was therefore not able to raise alarm.

4. After the appellant was done, PW1 stated that she woke up and ran home. On her way, she met PW3, IM. She told her what the appellant had done to her. PW3 testified that the child was at the time walking with difficulty. She was also carrying her biker and underwear. PW3 stated that she saw the appellant about two meters away from where she met the child. PW3 took the child home and informed her mother (PW2) of what had transpired. They went back to the scene where they were able to retrieve the child’s jerrican and one shoe.

5. PW8, BM, and PW9, FK, were among the members of the public who arrested the appellant at his house and escorted him to Nchiru Police Station. They were accompanied by the child and PW2. PW2 reported the incident to the investigating officer, PW6, who was at the police station at the time. The appellant was placed in custody, while the child was taken to Meru General Hospital for medical attention. PW7, Dr. Samson Mutegi examined the complainant at Meru General Hospital. He testified that upon examining her genitalia, he formed the opinion that she had been penetrated as her hymen had been torn. He produced the complainant’s P3 form in court as Prosecution Exhibit No.1.

6. On his part, the appellant, in his unsworn statement, denied the charges. He asserted that on the material day, he was on his way home from his shamba when he heard screams. He rushed to the scene. He found a group of people who started accusing him of harming the child. He was arrested and taken to the police station.

7. The learned trial magistrate, upon assessing and analyzing the evidence tendered before him, found the appellant guilty of the offence in the main count, convicted him and sentenced him to life imprisonment. The appellant, aggrieved by this decision, filed an appeal before the High Court.

8. In his petition of appeal, the appellant faulted the trial court for failing to find that the elements of penetration and identification were not established by the prosecution to the required standard of proof beyond any reasonable doubt. He was aggrieved that the trial magistrate relied solely on the uncorroborated evidence of the child, and took into account extraneous matters in making his decision. He stated that the trial magistrate failed to consider his defence in making his determination. Lastly, he was of the view that the evidence adduced by the prosecution was insufficient to sustain a conviction.

9. The learned Judge, upon re-evaluating the record of the trial court and the evidence tendered before it, in light of the grounds of appeal and the submission made before the court, saw no reason to disturb the conviction and sentence meted against the appellant by the trial court.

10. The appellant is now before this Court seeking to overturn the decision of the High Court, and has put forward twelve (12) grounds of appeal in his memorandum of appeal together with other grounds in the supplementary grounds of appeal. In summary, the appellant was aggrieved that: the elements of identification and penetration were not conclusively proved by the prosecution; the evidence adduced by the prosecution witnesses was contradictory; that his defence was not considered by the trial court; that there was an existing grudge between him and the child’s mother, who is his aunt, and who wanted to take over the appellant’s property; and finally, that his right to a fair trial was violated.

11. The appeal was canvassed by way written submissions of both the appellant and the respondent which were later orally highlighted when the appeal was listed for hearing. With regard to identification, the appellant stated that according to the evidence of the child, the alleged incident occurred after 6. 00 p.m., and that it was dark. He explained that the conditions favouring positive identification were not present in this case. He submitted that PW3 did not disclose what source of light she used to identify the perpetrator, especially since she testified that the perpetrator was a few meters away from where she met the child. It was his view that the evidence of identification was not watertight to sustain a conviction.

12. On the issue of penetration, it was the appellant’s submission that a broken hymen alone is not sufficient to prove penetration. He cited the decision of this Court in the case of P.K.W. vs Republic [2012] eKLR in support of this submission. The appellant further submitted that the evidence by the prosecution witnesses was contradictory and inconsistent. He stated that whereas it was PW1’s testimony that when she woke up, she wore her under pant and biker and ran home, PW3 on her part testified that when she met the complainant, she was holding her underpant and biker, and was walking with difficulty. He asserted that the evidence by the prosecution witnesses was therefore unreliable. He placed reliance on the case of John Barasa vs R [2006] eKLR.

13. It was the appellant’s submission, that there existed a feud between him the complainant’s mother (PW2), who was also his aunt. He asserted that PW2 wanted to take over his parcel of land. She therefore framed him and took possession of his land after he was placed in custody. He submitted that his right to a fair trial was violated by the trial Magistrate who declined to give him time to prepare for the trial. In the premises, he urged this Court to allow his appeal.

14. In rebuttal, the respondent made submissions to the effect that the ingredients of the offence of defilement were established by the prosecution to the required standard of proof beyond any reasonable doubt. Learned State Counsel, Ms. Kitoto, stated that the evidence of PW2 as well as the complainant’s health card produced in court established that the complainant was eight (8) years old at the time that the sexual assault took place. She asserted that the medical evidence adduced by PW7 proved the element of penetration as alleged by the complainant.

15. With regard to identification, the learned State Counsel submitted that the appellant was well known to the complainant. He was a neighbour. She explained that the complainant testified that she was able to identify the appellant and therefore that, this was not a case of mistaken identity. She maintained that PW3 saw the appellant walking behind the complainant, therefore placing him at the scene of crime. With respect to the sentence, Ms. Kitoto was of the view that no evidence was led by the appellant to show that the trial court was misdirected in meting the sentence of life imprisonment. She urged the Court to find that the appellant’s conviction was safe, and invited us to uphold his conviction and affirm his sentence.

16. This is a second appeal. The mandate of this Court on a second appeal is confined to matters of law only, unless it is shown that the courts below considered matters that they should not have considered or failed to consider matters that they should have considered or looking at the entire decision, it is perverse. In the case of Karingo vs Republic (1982) KLR 213 at page 219 this Court stated thus:“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence. The rest to be applied on second appeal is whether there was any evidence on which the trial court found as it did (Reuben Karoti S/O Karanja versus Republic (1956) 17 EACA 146. ”

17. We have carefully considered the record of appeal judgments of both the trial and the first appellate court and the rival submissions set out above, in light of this Court’s mandate. One of the complaints by the appellant is that the element of penetration was not established by the prosecution. He submitted that no DNA test was conducted to link him to the offence. The appellant argued that the evidence of an absent hymen alone cannot conclusively determine that the complainant was defiled. We agree with the appellant in that regard. However, medical evidence is not the only proof of penetration in defilement cases. The element of penetration can be proved by the testimony of the complainant. This court has severally held that what is most important to prove the allegation of rape or defilement is not medical evidence but the oral evidence tendered by the victim. In the case of Kassim Ali vs Republic [2006] eKLR this Court observed as follows:“So the absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim of rape or circumstantial evidence.”

18. In the instant appeal, the complainant narrated to the trial court how the appellant accosted her on her way home from a river, put her on the ground, undressed her, and proceeded to insert his penis in her vagina. The trial Magistrate who had the benefit of seeing the complainant testify found that the complainant was a truthful witness, which decision was upheld by the High Court. Section 124 of the Evidence Act provides thus:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”

19. The effect of the proviso to Section 124 was considered by this Court in the case of Robert Kabwere Kiti v Republic [2012] eKLR, where the Court observed as follows:“Turning to corroboration as a requirement for the minor’s evidence as complained by the appellant, in the Mohamed versus Republic case (2005 2 KLR 138) this Court made the following observations:‘By legal notice No.5 of 2005 which introduced the proviso to Section 124 of the Evidence Act, Parliament drastically qualified Section 124 of the Evidence Act to enable a court in a sexual offence case to convict on the sole evidence of a child of tender years if satisfied that the child was telling the truth so that corroboration was no longer required as a matter of law making it now settled that the courts shall no longer be hamstrung by requirements of corroboration where the witness of a sexual offence is a child of tender years if it is satisfied that the child is truthful’.”

20. In the instant appeal, the two courts below were satisfied that the complainant’s evidence was consistent and truthful. The testimony of the complainant was sufficient and proved that there was penetrative sexual assault by the appellant. The medical evidence, analyzed together with the evidence of the complainant, established beyond any reasonable doubt that the complainant was defiled.

21. With regard to the issue of identification, the appellant submitted that the conditions favouring a positive identification to be made were not present when the offence was alleged to have occurred. According to the prosecution witnesses, the incident took place between 6. 00 p.m. and 7. 00 p.m. The appellant was well known to the victim’s family as well as the identifying witnesses, being the complainant and PW3. The complainant and PW2 told the court that the appellant was their neighbour. PW3’s house was also located next to the appellant’s house. The complainant was categorical that it was appellant who defiled her. She identified the appellant by name in her first instance when she met PW3.

22. PW3 testified that she saw the appellant approximately two metres behind the complainant at the scene of crime. We agree with the finding of the trial court that taking into account the proximity of the appellant to the complainant when the offence was being committed, the fact that the appellant was known to the complainant, and the fact that he was not wearing a disguise, the appellant was properly identified by the complainant. The complainant was categorical that she was able to identify the appellant as it was not very? dark. This ground of appeal must therefore fail.

23. It is our view that the contradictions pointed out by the appellant were not so material as to vitiate the conviction. They do not show an intention on the part of the witnesses to mislead the court. The claim by the appellant that his defence was not considered is not supported by the record of the trial court. In rejecting his defence, the trial court stated thus:“It is also to be noted that when the members of the public visited the accused home, they found him at his home. This was confirmed by the testimony of PW 2, PW 3, PW 8 and PW 9. It is therefore not true that the accused person was arrested when he went to respond to the screams as he alleges in his defence…The accused defence is clearly an afterthought. The evidence tendered by the prosecution witness[es] put him at the scene of the offence.”

24. The appellant’s complaint that his defence was not considered is therefore without merit.

25. The other contention by the appellant is that PW2, who he claims is his aunt, framed him so that she could take over the parcel of land where he resided. Both the trial and the first appellate court found that no evidence had been tendered by the appellant to prove the existence of a grudge between him and PW2. Further, the fact that the appellant claims that PW2 was his aunt was never brought up by the appellant before the two courts below, and therefore cannot now be introduced before this Court at this stage of the proceedings as it is a matter of fact. PW2, during cross examination, denied framing the appellant or demolishing his house. The appellant, in his defence did not adduce any evidence to explain the existence of any grudge between him and PW2, and no evidence was led to establish that PW2 took possession of any parcel of land belonging to the appellant. Further, the issue of existence of a grudge did not form part of his grounds of appeal or submissions before the High Court. In this regard, this court finds that no grudge was established to exist between the appellant and PW2 to support the allegation that he was framed by PW2.

26. The appellant averred that his right to a fair trial was violated by the trial Magistrate who dismissed his application requesting for time to prepare for the trial. From the trial court’s record, when the trial was listed for hearing on 20th September 2013, the appellant informed the court that he was not ready to proceed as he had not been furnished with witnesses’ statements. The trial Magistrate adjourned the matter and directed that the appellant be provided with witnesses’ statements at the expense of the court, which the court record reflects was done. At the next hearing date on 24th September 2013, the appellant stated that he was not ready to proceed as he had no faith in the court, and further that he had not yet read the witnesses’ statements.

27. The trial court rejected his application for adjournment noting that the appellant was derailing the hearing of the case as he had been furnished with witnesses’ statements and accorded ample time to prepare for his defence. This Court agrees with the stand taken by the trial court. The appellant cannot therefore claim that he was not granted sufficient time to prepare for trial as he had been indulged by the trial court and furnished with witnesses’ statements when the case started afresh, upon the appellant’s request. The trial court put into consideration the fact that the case was an old matter that began in 2011, and was now beginning afresh in 2013 on the insistence of the appellant. Justice must serve all parties, including the victim, and any unreasonable delay in determination of a case, negatively impacts the administration of justice.

28. In the circumstances, we are satisfied that the High Court addressed itself correctly on the law and that there are no grounds for interfering with the concurrent findings of fact by the two courts below. We are satisfied that the appellant was properly convicted of the offence of defilement contrary to section 8(2) of the Sexual Offences Act. The resulting sentence was within the limits permitted by law and we find no reason to interfere with the exercise of that discretion by the trial court.

29. This appeal has no merit and is hereby dismissed.

DATED AND DELIVERED AT NYERI THIS 10TH DAY OF NOVEMBER, 2023. W. KARANJA...............................JUDGE OF APPEALJAMILA MOHAMMED...............................JUDGE OF APPEALL. KIMARU...............................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR