[2022] KEHC 13475 (KLR)

Kipchumba v Republic (Criminal Appeal E078 of 2021) [2022] KEHC 13475 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13475 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Criminal Appeal E078 of 2021

RN Nyakundi, J

October 5, 2022

Between

Ezra Kipchumba

Appellant

and

Republic

Respondent

(Being an Appeal from the original conviction and sentence in Iten Principal Magistrate’s Criminal Court Case No. 40 of 2019)

Judgment

1. The appellant herein was the accused on Iten SPMCC No. 40 of 2019. He was charged with the offence of attempted defilement contrary to section 9(1)(2) of the Sexual Offences Act No. 3 of 2006. The particulars are that on the night of 20th and 21st November 2019 at around midnight in Kipsaiya location he intentionally attempted to cause his penis to penetrate the vagina of JJ aged 9 years old.

2. He faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act. That on the night of 20th and 21st November 2019 at around midnight in Kipsaiya he intentionally touched the vagina of JJ, a girl aged 9 years with his penis.

3. The prosecution called 6 witnesses to prove its case and the accused person was put on his defence. Upon considering the testimony of all the witnesses and the evidence before the court, the trial court found him guilty and sentenced him to 15 years imprisonment.

4. The accused person being dissatisfied with the decision of the trial court instituted the present appeal vide a petition of appeal filed on 9th December 2021 based on the following grounds;1. That, the trial magistrate erred in law and facts by convicting the appellant without proper evaluation of his defence of alibi without proper evaluation of it,2. That, the trial magistrate grossly misdirected herself by convicting me without realizing that witnesses did not turn up to shade light on the case..

3. That, the trial court relied on the medical report which was centred on the personal opinion of the expert.4. That, (I) am aggrieved the trial court erred in law and facts by convicting (me) without recognizing that the charge sheet was fatally defective.5. That, the learned trial magistrate erred in both law and fact by convicting the appellant based on fabricated, inconsistent, farfetched and uncorroborated evidence.6. That, the learned trial magistrate erred in law and facts by shifting the burden of prove from the prosecution backyard to the appellant when the evidence failed to link him to the offence.7. That, other grounds will be raised during hearing. Appellant’s Case 5. The appellant submitted that he was arrested on 21st November 2019 and arraigned in court on 1st December 2019 and not on 25th November 2019 as indicated on the charge sheet. Further he cited section 333(2) of the Criminal Procedure code and submitted that the trial process was irregular and illegal. He contends that there was a violation his rights under article 49 of the Constitution.

6. Citing section 135 of the Criminal Procedure Code, the appellant submitted that the charge sheet was defective as it showed that he was arrested on 21st November 2019 and arraigned in court on 25th November 2019 whereas the proceedings show his first court appearance as 1st November 2019. Therefore, the information in the charge sheet is incorrect. The trial court should have ordered the prosecution to amend the charge sheet and the violation renders the charge sheet defective under section 214 of the Criminal Procedure Code. The violation therein renders the conviction illegal, irregular and unsafe.

7. The appellant contended that all the prosecution witnesses’ evidence was not credible due to inconsistent evidence. He contended that PW6 testified as to his arrest and it is not clear what time the report was made to the police. Further, that there were no members of the public called to clear the air on his arrest which was by members of the public.

8. He submitted that the evidence of PW1 was untruthful. She stated that the door was closed and the appellant kicked it open but was that possible without PW2 hearing anything? Further, that PW2 stated that she was present at the scene and stated that she saw the accused person in the dark which was unreasonable. She stated that the incident happened at 3. 00am but PW3 came to their rescue at 1. 00am. He once again raised the question of identification in the dark.

9. PW4’s testimony was uncorroborated with regards PW3 to being in possession of a D-Light. There was no corroboration of the evidence of the appellant slapping PW3. He maintained that the evidence of the witnesses was inconsistent and the information was tailored to frame him.

10. The appellant submitted that the evidence of PW5 was that everything with the complainant was normal. There was no spermatozoa found and the vaginal tears might have been caused by various factors including physical exercise, cycling, among others. He urged the court to disregard the evidence of PW5 as his role in this case was just routine.

11. He asked that the court disregard the appeal.

Respondent’s Case 12. There are no submissions on record for the Respondent.

Issues for determination 13. Upon perusing the record of the trial court, the petition of appeal and the submissions by the parties, I have identified the following issues for determination;a.Whether the charge sheet was defectiveb.Whether the prosecution proved its case to the required standard.

14. This court being a first appellate court is alive to and takes into account the principles laid down in the case of Okeno vs. Republic(1972) EA 32 where the Court of Appeal for Eastern Africa stated that:An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya V R 1975) E.A. 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. R [1957] E.A. 570. It is not the junction of a first appellate Court 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 1978) E.A. 424. ”

Whether the charge sheet was defective 15. In Isaac Omambia v Republic, [1995] eKLR, the Court of Appeal considered the ingredients necessary in a charge sheet and stated as follows:In this regard, it is pertinent to draw attention to the following provisions of S. 134 of the Criminal Procedure Code which makes particulars of a charge an integral part of the charge: Every charge or information shall contain, and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence.”

16. The Court of Appeal in Peter Ngure Mwangi v Republic [2014] eKLR, quoted the Isaac Omambia case with approval and further stated that:A charge can also be defective if it is in variance with the evidence adduced in its support. Quoting with approval from Archbold, Criminal Pleading, Evidence and Practice (40th Edn), page 52 paragraph 53, this Court stated in Yongo V R, [198] eKLR that:“In England it has been said: An indictment is defective not only when it is bad on the face of it, but also:(i)when it does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offences not disclosed in that evidence or fails to charge an offence which is disclosed therein,(ii)when for such reason it does not accord with the evidence given at the trial.”

17. Section 134 of the Criminal Procedure Code provides;Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

18. The appellant’s bone of contention is that the charge sheet contains incorrect information with regards to his first arraignment on court. The purpose of a charge sheet is to state particulars necessary for giving reasonable information as to the nature of the offence charged. The date of arraignment in court is not necessary for this purpose. Further, the charge sheet states that the accused was in court on 25th November 2019 which is reflected in the court record therefore the information contained on the charge sheet is accurate.

19. This limb of the application fails.

Whether the prosecution proved its case to the required standard 20. The Appellant herein was charged under Section 9(1) and (2) of the Sexual Offences Act. No. 3 of 2006. The said provision provides as follows:(1)A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.(2)A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.

22. It follows that the prosecution must prove the ingredients of defilement (age, positive identification) except penetration and the steps taken by the Appellant to execute the defilement which were unsuccessful. Section 388 of the Penal Code defines attempt in the following terms:(1)Where a person intending to commit an offence begins to put his intentions into execution by means adopted to its fulfilment manifests his intentions by some avert act but does not fulfil his intentions to such an extent as to commit the offence, he is deemed to attempt to commit an offence.(2)It is immaterial except so far as regards punishment whether the offender does all that of necessary on his part for completing the commission of the offence or whether the complete is prevented by circumstances independent of his will or whether he desists of his own motion from further prosecution of his intention.(3)It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

23. Madan Ag. CJ. (as he then was) in Keteta v. R, (1972) EA 532, 534, opined that:A mere intention to commit an offence which is in fact not committed cannot constitute an attempt to commit it. There must also be an overt act which is immediately and remotely connected with the offence intended to be committed and which manifests the intention to commit the offence. A remotely connected act will not do.”

24. The evidence points to a situation where the complainant was asleep and the appellant entered the house and attempted to defile her. He was identified by the way of recognition. PW2 who was in the room with the complainant was able to identify the appellant. She stated that she did not know the accused but she had seen his face during the day near Joy’s home. In sexual offences, where the minor is the victim of the offence, the evidence of that minor, if believed by the trial court, can, without corroboration, found a conviction. Section 124 of the Evidence Act makes this quite clear:Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of alleged victim 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.”

25. PW3 corroborated the evidence of the minors as she found the appellant on his way out of the house. The appellant was not able to explain why he was at the house. I am in agreement with the trial court that his evidence did not controvert the prosecutions’ evidence.

26. In the premises the appeal fails on all limbs. The appeal is hereby dismissed.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 5THDAY OF OCTOBER, 2022. ................................R. NYAKUNDIJUDGE