[2022] KEHC 12878 (KLR)

Khauka v Republic (Criminal Appeal E059 of 2021) [2022] KEHC 12878 (KLR) (12 September 2022) (Judgment)

Neutral citation: [2022] KEHC 12878 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal E059 of 2021

HI Ong'udi, J

September 12, 2022

Between

Robert Khauka

Appellant

and

Republic

Respondent

(Arising from the Judgment by G. Adhiambo Principal Magistrate in Senior Principal Magistrate’s Court Kimilili Sexual Offences no. 50 of 2020 delivered on 17th May 2021)

Judgment

1. Robert Khauka appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars being that the appellant on the 25th day of July 2020 at [particulars withheld] village in Bungoma North Sub County within Bungoma County, intentionally and unlawfully caused his penis to penetrate the vagina of SNB a mentally retarded girl child aged sixteen (16) years.

2. In the alternative he faced the offence of committing an indecent act with a child contrary to section 11(1) of the sexual offences Act No. 3 of 2006. The particulars were that the appellant on 25th day of July 2020 at [particulars withheld] village in Bungoma County within Bungoma Country, intentionally and unlawfully caused his penis to come into contact with the vagina of SNB a mentally retarded girl child aged sixteen (16) years.

3. He denied the charges and the case proceeded to full hearing with the prosecution calling three (3) witnesses. The appellant gave a sworn statement of defence.

4. He was eventually found guilty, convicted, and sentenced to serve 15 years imprisonment on the principal count. Being aggrieved he filed this appeal raising the following grounds:(i)That, he did not plead guilty to the charges.(ii)That, the learned trial magistrate erred in law and fact by awarding a conviction without proper inquiry and investigation.(iii)That, the learned trail magistrate erred in law and fact by failing to consider the circumstantial evidence.(iv)That, the learned trial magistrate erred in law and facts by convicting the appellant based on hearsay evidence.(v)That, the learned trial magistrate grossly erred in law and fact by convicting the appellant in the absence of the complainant’s evidence thus not inviting a friend of the court to assist in sign language interpretation.(vi)That, the learned trial magistrate erred in law and fact by failing to consider that forensic evidence did not corroborate.(vii)That, the learned trial erred in both law and fact by applying a wrong principal of convicting the appellant on the weaknesses of the defence thus rejecting his ALIBI defence that created a reasonable amount of doubt to the strength of the prosecution.

5. A summary of the evidence on record will suffice. PW1 – AW is the mother of the victim (S.N.B). She testified that SNB. who was then aged 15 years is mentally challenged since an early age. She however understands when someone talks to her, and can express herself though not so well. She explained that onJuly 25, 2020 noon she was at home with SNB and she sent her to buy maize at the home of one Tabitha, which is not far from their home.

6. When it took too long for SNB to return she decided to go to Tabitha’s to look for her. She was informed the girl had not been there. She went back home and did not find her still. Later as she searched she saw the girl emerging from the appellant’s house. She was fearful and explained to her how the appellant had taken her to his house to give her maize. He instead removed all her clothes and had sexual intercourse with her.

7. She lifted the girl’s dress and noted fresh blood on her petticoat and under pants. She called the appellant out of the house and he responded, but denied defiling the girl. PW1 went to the road with SNB and called the village elder. The girl had struggles walking and she complained of pain in her vagina PW1 checked and saw mucus in it.

8. She took SNB to Ndalu Health centre and then made a report at Kapchonge Police station, where they were issued with a P3 form. The police took SNB and the appellant to Ndalu Health centre for examination. She identified the P3 form, SNB’s hospital attendance card and post rape forms. She said she had known the appellant for two (2) months prior to the incident.

9. In cross examination she denied having approached the appellant for a love relationship. She explained that it was her first time to set foot on that compound when she saw SNB leaving the appellant’s house.

10. PW2 – Perpetua Akware is a registered clinical officer at Ndalu Health Centre. She testified on behalf of a colleague Anthony Simiyu, whose qualifications she gave. Referring to the treatment notes she gave the findings as follows; Pink petticoat was torn and blood stained.

Hymen membrane was not intact. Had a fresh tear of 6. 00 o’clock.

Vulva was blood stained.

Pregnancy test, VDRL test, and HIV test were negative.

HVS revealed the presence of epithelial cells, red blood cells and sperm cells.

Urinalysis showed pus cells, epithelial cells and red blood cells.

She was placed on medication. This witness produced the treatment notes, post rape case form and P3 form as PEXB 1a, b, and c respectively.

11. She confirmed that from the lab findings and physical examination there was evidence of defilement. She too examined SNB and found her to still have a bloody vulva and she was fearful. She still wore the torn pink petticoat which was blood stained.

12. In cross examination she denied being compromised in the matter. She confirmed physically examining SBN, and her findings were consistent with the history.

13. PW3 No. 85599 PC Walter Ojwang was the investigating officer and was attached to Kiminini police station. He received the report of the defilement from PW 1, on July 25, 2020 at around 3. 30pm. He confirmed the same from SNB who was with the mother (PW1). They sent PW 1 and SNB to Ndalu health centre, and a short while later, the appellant was brought to the station by Nyumba kumi elders Busolo Wekesa and Wamukota. He did not record S.N.B’s statement since she was a vulnerable witness.

14. He produced SNB’s baptismal card (PEX XX) showing she was born on May 6, 2005and the appellant’s treatment notes dated May 27, 2020 (PEX XX). A mental assessment of S.B.N was done at Webuye sub county hospital on October 16, 2020 (report PEXB4). The report shows she has some degree of mental retardness. Those who arrested the appellant did not testify as they were in custody as murder suspects.

15. In cross examination the witness reiterated what he had said in his evidence in chief.

16. In his sworn defence the appellant denied the charge against him. He stated that he worked at [particulars withheld] village. During his second month of service PW1 started coming to the home to borrow vegetables. Later she started demanding to be her lover, but he declined. She issued him with threats and even demanded for his boss’s bull. He refused to give it to her, without the boss’s permission. The next day PW1 arrived with her daughter claiming he had defiled her. He denied this saying he stayed on a church compound and could not do such a thing there. He was later arrested and taken to hospital. He denied committing the offence.

17. The appellant relied on his undated written submissions. He raises issue with the fact that the complainant was never called as a witness. Further that he was convicted under section 8(1) as read with section 8(4) which he was never charged with. That the victim’s age was 16years which falls under Section 8(3) of the sexual offences Act. It is his further submission that no one found him in the act of defiling S.N.B. Thus the evidence presented was circumstantial. For such evidence to be relied on to convict it must be inconsistent with his innocence he argues. He referred to the following cases, to support this argument:(i)Republic v Kipkering Arap Koske16 EACA 135(ii)Abanga alias Onyango v RepublicCr. Appeal No. 32 of 1990(iii)Kariuki Karanja v Republic[1986] KLR 190

18. On his defence of alibi he submits that the same was never displaced. See Michael Mumo Nzioka v Republic [2019] eKLR. Owing to the allegations he made against PW1 he asks the court not to rely on her evidence. This is coupled with the fact that the victim never testified. Reference was made to the case of Ngungú Kimanyi v Republic[1979] KLR 282.

19. He further submits that he was not identified since SNB did not testify. That his was a case of suspicion which cannot be relied on by the court. It’s his further contention that there were glaring inconsistencies in the prosecution case. For example there were no clothes, nor pants produced in court. He also raises doubts on the victim’s age, as two ages are floated i.e. 15 years and 16 years. That he too was not subjected to age assessment.

20. Finally he contends that failure to call vital witnesses should have resulted in his acquittal. He faults the trial court for not complying with sections 31 and 31 (4)(B) of the Sexual Offences Act No 3 of 2006. The court should have had SNB testify through an intermediary, he submits.

21. The respondent’s submissions are dated August 3, 2022and done by learned counsel Hilda Omondi. It’s her submission that through SNB has a mental disability she was able to inform her other, medical officer and investigating officer what transpired. For age a baptismal card was produced showing she was 15 years 2 months at the time of offence. Further that the fact of penetration was not in issue, from the medical evidence.

22. Counsel has submitted that SNB could not testify due to her mental disability as shown by the mental assessment report. That the trial court while relying on Sawe v Republic[2003] KLR 364 warned itself before relying on circumstantial evidence. Its her contention that the evidence of the prosecution witnesses adds up so well and no other inference could be drawn therefrom besides the guilt of the appellant.

23. She therefore called on this court not to interfere with the discretion of the trial court as was held in Republic v Abeid[1990] eKLR where the court stated:“However, the principle is that an appellate court should not interfere with the discretion which the trial court has exercised as to sentence unless it is evident that it overlooked some material factor, took into consideration some immaterial factor, acted on a wrong principle or the sentence is manifestly excessive or manifestly lenient in the circumstances of the case.”

Analysis and determination 24. This being a first appeal, the court has a duty to re-evaluate and re-consider the evidence on record and arrive at its own conclusion. The court should also bear in mind that it did not see nor hear the witnesses and give an allowance for that. In the case of Okeno v Republic[1972] EA. 32 Court of Appeal stated:“An appellant on a fist appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic[1957] EA 336) and to the appellate court’s own decision on the evidence. The first appellate Court must itself weigh “conflicting evidence and draw its own conclusions (Shantilal M Ruwala v Republic [1957] EA 570). It is not the function of a first appellate merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own 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. ”See also:(i)Kiilu & another v Republic [2005] 1 KLR 174(ii)Simiyu and another v Republic [2005] 1 KLR 192

25. I have carefully considered the evidence on record, the grounds of appeal, both submissions, cited authorities and the law. The issues I find falling for determination are:(i)Whether the charge facing the appellant was defective(ii)Whether the charge of defilement was strictly proved.

Issue No.(1) Whether the charge facing the appellant was defective. 26. The correctness of a charge is a key element in fair hearing of a case.The particulars of the charge facing the appellant reveal two elements which the trial court and prosecution ought to have taken serious note of: The elements are:(i)SNB was a child aged 16 years(ii)SNB was also mentally challenged.

27. Are these two elements covered under section 8 (1) of the Sexual offences Act No 3 of 2006? The said section provides:“8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.”This section does not cover the element of mental challenges. The prosecution produced a mental assessment report of SNB (PEXB 3) to further confirm her mental status.

28. During the repeal of sections of the Penal Code for incorporation into the Sexual Offences Act No 3 of 2006 section 146 of the Penal Code was not repealed. It is the one that covers the condition of SNB.

29. Section 146 of the Penal Code provides as follows:“Any person who, knowing a person to be an idiot or imbecile, has or attempts to have unlawful carnal connection with him or her under circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the person was an idiot or imbecile, is guilty of a felony and is liable to imprisonment with hard labour for fourteen years.

30. The marginal note to this section describes the offence created in section 146 of thePenal Codeas “Defilement of idiots or imbeciles” The body of the provision indicates that the conduct targeted is “unlawful carnal connection with” the victim “under circumstances not amounting to rape.” The offence created in this section is clearly defilement of a person with mental incapacities. My interpretation is that section 8(1) of the Sexual Offences Act deals with normal victims, who do not fall in the special category of SNB.

31. In the case of Njoroge Mungai v Republic [2017] eKLR the appellant had been charged with rape of a woman with mental disabilities contrary to section 7 of the Sexual Offences Act, with an alternative count of committing an indecent act with an adult contrary to section 11A of the said Act. The court found that the facts of the charge revealed an offence under section 146 of the Penal Code and not section 7 of the Sexual Offences Act.

32. The appellant in that case ought to have been charged under section 146 of the Penal Code. The court found that the appellant had been convicted on a non-existent offence, in the principal count, and the proceedings were therefore defective and a nullity. They were quashed and a re-trial ordered.

33. Similarly Musa Kiprotich Kitilit v. Republic [2012] eKLR presented a similar scenario. The court found that the charge was defective fatally as the particulars of the charge were at variance with section 7 of the { Sexual Offences Act. The conviction was quashed and the appellant set at liberty.

34. The two scenarios cited above are no different from what is before this court. PW1, PW2 & PW3 all testified that SNB has mental challenges. A report to that effect was produced, (PEXXX).In her evidence in chief this is what PW 1 (mother to S.N.B) stated of her:“She can understand when someone talks to her. She can express herself but not so well because sometime she forgets.”

35. The investigating officer (PW3) stated thus:“I interrogated the girl. She told me so well but it took time to get information from her. She confirmed the same story to me.”The record shows that after PW3 had been cross examined by the appellant the prosecution closed its case.

36. The mental assessment report (PEXXX) in its recommendation states:“The client has some degree of mental retardation, hence she can benefit more from the mental follow-up clinics.”A further perusal of the said report shows that SNB was coherent and relevant in speech; her memory was fair to immediate and present but not past; fair to place and person but not time.

37. I am setting out all this because under section 31 of the Sexual Offences Act the learned trial magistrate had to make a finding and give direction on how (if need be) SNB was to testify. There is nothing on record to show what the court found about SNB.

38. The girl was never presented to the court for it to make an observation of her vis a vis what PW1, PW3 and PEXB4 were telling the court. In keeping silent the court simply relied on PW1’s & PW3’s evidence to find that SNB was incapable of testifying, and did not give her an opportunity to tell the Court what she had told the others.

39. This was a grievous error and it denied the appellant an opportunity to cross examine her. SNB also never got a chance to identify the culprit, before the Court.

40. From what I have stated above its clear that the trial court fell into error by convicting the appellant on the basis of a charge sheet that was fatally defective. I would have ordered for a retrial had SNB testified. The fact that she did not testify without any justification deals a blow to the prosecution case. That being the case I will not consider the second issue. I hope the appellant who was a first offender has picked lessons from this incident, after being in prison.

41. In the circumstances I quash the conviction for defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act. The sentence of 15 years imprisonment is set aside.

42. The appellant shall be released forthwith unless otherwise lawfully held under a separate warrant.

Orders accordingly.

DELIVERED VIRTUALLY, DATED AND SIGNED THIS 12TH DAY OF SEPTEMBER, 2022 IN OPEN COURT AT NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT