[2022] KEHC 12622 (KLR)

Kipchirchir v Republic (Criminal Appeal E001 of 2021) [2022] KEHC 12622 (KLR) (20 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12622 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Criminal Appeal E001 of 2021

RN Nyakundi, J

July 20, 2022

Between

James Kipchirchir

Appellant

and

Republic

Respondent

Judgment

1The appellant herein was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge are that on2nd September 2016, at [Particulars withheld] village in Nandi County, the accused person caused his penis to penetrate the vagina of PJ, achild aged 13 years.

2In the alternative he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the charge are that on 2nd September 2016, at [particulars withheld] village in Nandi County, the accused person caused his penis to penetrate the vagina of PJ, a child aged 13 years.

3The appellant pleaded not guilty to all the charges and the trial proceeded to full hearing. Upon considering all the evidence and the testimony by the witnesses, the trial court found him guilty and sentenced him to 20 years imprisonment.

4The appellant being dissatisfied with the sentence and conviction instituted the present appeal vide a petition of appeal dated February 10, 2020. The appeal is based on the grounds that; The learned trial magistrate erred in both law and fact by failing to properly evaluate the evidence before him thus reaching an erroneous decision.

The learned trial magistrate erred in both law and fact by failing to accord the appellant with legal representation since the charges being od a serious nature, the appellant ought to have been granted the fairest representation.

The learned trial magistrate erred in both law and fact by failing to consider that the appellant samples were not subjected to forensic testing to confirm that he was the one who committed the offence as required by section 36 of the Sexual Offences Act.

The learned trial magistrate erred in both law and fact by failing to give cogent reasons for rejecting the appellant’s defence given the gravity of the matter before the court.

The Learned trial magistrate erred in both law and fact in failing to consider and hold that the defence had sufficient weight to counter the prosecutions’ case.

The learned trial magistrate erred in both law and fact by failing to consider some of the evidence of the complainant with circumspection but taking the same as gospel truth thereby reaching an erroneous decision.

The learned trial magistrate erred in both law and fact in misconstruing the principles applicable in respect to admissibility of evidence of a child witness.

The learned trial magistrate erred in both law and fact by engaging in speculation as a basis of conviction and sentence against the appellant.

Appellant’s Case 5Learned counsel for the appellant filed submissions on June 27, 2022. He contended that the age of the victim was indicated as 13 years of age on the charge sheet whereas the complainant stated in a voire dire examination that she was 14 years of age. He cited the case of Kaingu Elias Kasomo v Republic, Criminal Appeal No 504 of 2010,Dominic Kibet v Republic, Criminal Appeal No 155 of 2011 and BOO v republic (2018) eKLR in support of the submission. the age of the victim according to the appellant was doubtful and thus he ought to be given the benefit of doubt.

6The appellant’s case is that penetration was not proven as the victim was examined 6 days after the alleged offence and the officer who examined her noted that there were no abnormalities detected on her vaginal wall and no injuries but the hymen was torn though not freshly so. The vagina, cervix and labia minora had no tears and spermatozoa was seen but the clinical officer vested with the burden of proving penetration failed to conduct DNA tests on the same to establish if the appellant was the perpetrator as envisaged under section 36 of the Sexual Offences Act. Further, there was no evidence to connect the appellant to the torn hymen which was the only ground used at the trial court.

7On identification, learned counsel for the appellant contended that it was improper as it was only the victim who saw him. The prosecution should have called someone to corroborate the testimony.

8The appellant’s case is that his rights under article 50(2)(g) of the constitution were violated as he was unrepresented. He cited the case ofJoseph Kiema Phillip v Republic[2019] eKLR and submitted that it was the duty of the trial court to look at the whole indictment and satisfy itself that substantial injustice would be occasioned which would inform the court to proceed with the trial of an unrepresented person. Further, the court should have conducted the trial in Kiswahili as that was the language that the accused understood at the plea but PW4 and PW5 testified in English.

9The trial court disregarded the defence of the accused that he had been framed due to a land dispute with the aunt of the victim. The learned trial magistrate used the wrong principle in requiring the appellant to disclose his defence during the hearing of the prosecution case. The court appeared to shift the burden of proof to the appellant whereas the prosecution should have been granted leave to controvert the appellant’s defence of there was any need to do so.

10Learned counsel for the appellant prayed the court allow the appeal, quash, vary or set aside the charges and the appellant be set free forthwith.

Respondent’s Case 11The respondent filed submissions on May 25, 2022 opposing the appeal. Learned prosecution counsel submitted that the age of the victim was proven to the required standard. She testified that she was born on December 4, 2003 and the mother, PW1 produced the child immunization card as Exhibit 1, which confirmed the age of the victim was 13 years and 3 months at the time of the offence.

12On penetration, counsel for the prosecution submitted that the complainant gave a consistent narration of want happened and her testimony was corroborated by the testimony of PW3 who stated that the hymen was torn though not freshly, and there was spermatozoa that was seen at the examination thus proving penetration further, counsel submitted that the identification of the accused was by recognition which is of great evidential value.

13The appellant was invited to defend himself on the issue of bad blood with the aunty of the victim did not controvert any of the testimony by the prosecution witnesses. Further, the medical evidence displaced the allegation of fabrication. The appeal is devoid of merit and should be dismissed.

14Upon considering the record of appeal, the petition of appeal and submissions by counsel I have identified the following issues for determination;a.Whether the offence of defilement was provenb.Whether the appellant’s right to a fair trial was violatedc.Whether the appeal succeeds

Whether the offence of defilement was proven 15Section 8(1) of the Sexual Offences Act provides;1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.The key ingredients of the offence of defilement as held in George Opondo Olunga v Republic [2016] eKLR are; proof of the age of the complainant,

proof of penetration and

proof that the appellant was the perpetrator of the offence.

Age of the complainant 16The appellants’ contention is based on the fact that the complainant testified that she was 14 years old yet the charge sheet stated that she was 13 years old.

17The Court of Appeal in the case ofHadson Ali Mwachongo v Republic[2016] eKLR stated as follows regarding the issue of age of the victim of sexual offence:“Before we conclude this judgment. It is necessary to say a word on computation of the age of the victim. The sexual offence provides for punishment for defilement in a graduated scale. The younger the victim, the severe the punishment. Where the victim 15 aged 11 years or less, the prescribed punishment child of 12 to 15 years attract 20 years imprisonment while defilement of a child aged 16 years to 18 years is punishable by 15 years imprisonment. Rarely will the age of the victim be exact, say exactly 8 years, 10 years, 13 years, etc, as at the date defilement to be treated as 11 years old or as more than 11 years old? If the victim is treated as more than 11 years old, to what term is the offender to be sentenced since the victim has not attained 12 years for which a sentence is prescribed. In the same vein, in the present appeal where the victim was aged 15 years and a couple of months old, but was not yet 16 years old, is the appellant to be sentenced as if the victim was exactly 15 years or as if she was 16 years old? ….”

18The complainants mother produced a child immunization certificate that showed that she was 13 years and 3 months at the time of the offence. Whereas the age of the victim is of great importance, it is evident that the victim was a minor aged 13 years at the time of the offence. Whereas she testified that she was 14 years old in court, there is no clarity as to whether that was in regards to her age at the time she was assaulted or at the time of trial. I therefore find that the age was proven to the required standard.

Penetration 19The court of appeal inMark Oiruri v Republic Criminal Appeal 295 of 2012 [2013] eKLR addressed the issue of penetration as follows;“…and the effect that the medical examination was carried out on her on November 16, 2008 five days after the event, and that during that time she must have taken a bath and no spermatozoa could be found. In any event the offence is against penetration of a minor and penetration does not necessarily end in the release of sperms into the victim. Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ…”

20The appellant’s contention was that the spermatozoa was not tested and therefore penetration was not proven. it is my view that the presence of spermatozoa was proof that there was penetration. However, the spermatozoa is not necessary to prove penetration was by the appellant. I do agree that conducting a DNA test on the same would have made for a stronger case but the same is not a mandatory requirement. Section 36(1) of the Sexual Offences Act provides;“Notwithstanding the provision of section 26 of this Act, or any other law, where a person is charged with committing on offence under this act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such condition, as the court may direct for the purpose of forensic and other testing, including a DNA test, in order to gather evidence and to ascertain whether or not the Accused person committed an offence.”

21The above provision was deliberated on by the Court of Appeal in the case of Robert Mutingi Mumbi v R Cr Appl No 52/2014 (Malindi) and the Court of Appeal stated:“Section 36(1) of the act empowers court to direct a person charged with an offence under the act to provide samples for tests, including forDNA testing to establish linkage between the Accused person and the offence. Clearly that provision is not concluded in mandatory terms.”Decision of this court abound which affirm the principle that Michael or DNA evidence is not the only evidence of which commission of a sexual offence may be proved.”

22It is clear that the section is not couched in mandatory terms and therefore a failure to test the spermatozoa is not fatal to the proof of penetration. The medical evidence corroborates the testimony of the victim and therefore I find that the issue of penetration was proven.

Proof that the appellant was the perpetrator of the crime 23The complainant was categorically clear that she knew the appellant as he was their neighbour. This is identification by recognition. The issue of identification by recognition was discussed in the case of R v Turnbull [1976] 3 ALL ER 549 the court held that:“Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

24Identification by recognition is more reliable than that of a stranger. Further, the appellants’ contention that there was no corroboration of the recognition is moot as the it is trite law that has been set down in sexual offenses that evidence of a single witness is safe enough to secure a conviction.

25In the premises the offence of defilement was proven to the required standard by the prosecution.

Whether the appellant’s right to a fair trial was violated 26Article 50(2)(g) of the Constitution provides;Every accused person has the right to a fair trial, which includes the right--(g)to choose, and be represented by, an advocate, and to be informed of this right promptly;

27The appellant claims that he was unrepresented however, a perusal of the proceedings shows that he was represented by Ms Muya at the initial stages of the hearing. during the pendency of the proceedings however, the appellant represented himself and from the record he appeared to participate in the proceedings with no issues at all.

28In the case of Hadson Ali Mwachongo v RCr Appl 65/2015 [2010] eKLR, the Court of Appeal pronounced itself on the issue of representation of an accused person as follows;“We are equally satisfied that the appellant’s constitutional right to a fair trial was not violated. The record does not indicate the Appellant raising any issue pertaining to access to witness statements. On the contrary, he is recorded informing the Court that he was ready for the hearing of the case when he was put on his defence on April 18, 2011, he informed the Court that he was ready for his defence but later stated that he needed to be provided with the “charge” the trial court adjourned the proceedings and directed that the proceedings be typed and supplied to the appellant. ………………. As this Court stated in Francis Macharia Gichengi & 3 others, Cr Appl No 11 of 2004, it is to be reasonably expected that an Accused person who claims that his or her trial rights have been violated will at the very least raised the issue with the trial Court.”

29I therefore find that the appellant was accorded a fair trial. In the premises the appeal fails on all limbs and is dismissed accordingly.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 20THDAY OF JULY, 2022. R. NYAKUNDIJUDGEIn the presence of:-Kipchum -presentMr Mugun for the state -present