[2022] KEHC 10828 (KLR)

Kiplangat v Republic (Criminal Appeal 44 of 2019) [2022] KEHC 10828 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10828 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Appeal 44 of 2019

HK Chemitei, J

June 9, 2022

Between

Aron Kiplangat

Appellant

and

Republic

Respondent

((Being an appeal from the decsion of HON. E Soita (RM) dated 4th June 2019 in Criminal Case NO 13 of 2017. Molo.))

Judgment

1. The appellant was accused of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No 3 of 2006. The particulars of the charge were that on the 27th day of January 2017 in Kuresoi sub county within Nakuru county unlawfully and intentionally committed an act by inserting his genital organ namely penis into a male genital organ namely anus of a child namely AK aged three and half years’ old which caused penetration.

2. He was convicted and sentenced to life imprisonment hence this appeal. The appellant in his amended grounds of appeal has raised three grounds basically, that the offence was not proved, that the medical evidence did not support the conviction, and that the court failed to comply with Section 200(3) of the Criminal Procedure Code.

3. When the matter came up for directions the court ordered the same to be disposed by way of written submission. Before looking at the same it is necessary to summarise the evidence as presented during trial.

4. The complainant who was a minor of tender years in his unsworn evidence told the court that the appellant stabbed him with a stick on his anus. He said that he removed his clothes and that he felt pain and he cried. He said that he warned him not to tell anyone.

5. PW2 RC the grandmother to the complainant produced his clinic card which showed that he was born on 16th October 2012. She said that she had gone to visit some friends and when she came back at 4pm she saw him walking with difficulty. Upon inquiry he told her what the appellant had done to him.

6. She checked his anus and she saw that it was bleeding and soiled. She took him to some private hospital but she was directed to take him to Kiptagich and later Olenguruone where she was examined and treated. She reported the matter at the police station and he was arrested. The p3 form was equally filled. She identified the appellant who was her herdsman.

7. PW3 Willy Maritim a nurse from Kiptagich health centre examined the complainant when he was brought to the hospital. He saw some tears on the anus, lacerations and watery discharge. He called the clinical officer who concluded that there was no penetration. They treated him and advised that they report to the police.

8. He went ahead to produce the P3 form which showed that there were lacerations and tears outside the anus. There was small tear on the anus.

9. PW4 PC Catherine Mwangangi carried investigations after the matter was reported and the arrest of the appellant. She said that they were taken to the appellant’s house where he was arrested and that it was the minor who identified the appellant.

10. When cross examined she said that it was not necessary to carry out identification parade as he was brought to the station and the minor identified him.

11. When placed on his defence the appellant gave unsworn evidence and he did not call any witness. He said that he was arrested as he was demanding a sum of Kshs30,000 from his employer. He said that he was arrested while asleep in his house. He denied that he committed the offence.

12. When the matter came up for directions the court ordered the same to be determined by way of written submissions.

Appellants submissions. 13. The appellant restated the three grounds necessary in establishing the offence of defilement. He however argued in his submissions that there were no sufficient grounds to prove that there was penetration. He relied on the evidence by the clinical officer which stated that much.

14. On the issue governing the provisions of Section 200 (3) of theCPC he argued that the same were never complied by the three successive judicial officers who handled his matter. He relied on the case of Raphaelv. Rep. (1969) EA 544.

15. According to him, this was a fatal error which although procedural went into the substance of his case.

16. The other submissions generally dealt with the fact that the evidence as presented were insufficient to have convicted him.

Respondents submissions. 17. The learned state counsel supported the findings by the trial court. He stated that the age of the minor was well established by the production of the clinic card which indicated that he was about three and half years.

18. On identification, he submitted that the appellant and the minor lived together and there was no doubt that he knew him. There could therefore have been no case of mistaken identity.

19. On the ground of penetration, he argued that the minor clearly explained himself and the medical evidence produced showed that he had been defiled and that there was penetration as far as the injuries he sustained revealed.

Analysis and determination. 20. The court at this level must re-evaluate the evidence and come up with a fresh and independent finding as was clearly stated in the case of Okenov. Rep. 1972 EA 32.

21. The three ingredients of the offence were well captured by the parties herein namely the age of the victim, the identity of the perpetrator as well as penetration.

22. The age of the minor was well proved by the production of the clinic card by PW2. The same showed that as at the time of the incident he was about 4 years.

23. The identity of the appellant was not in doubt. He admitted that he was PW2s herdsman who was a grandmother to the complainant. The child said that they were together herding the animals. The incident took place during the day and thus conclusively i agree with the trial court on this ground.

24. The next issue is to do with the crucial ground of penetration. The minor indicated that the appellant stabbed him with a stick. Obviously the child could not tell whatever was used to injure him. There was visible evidence of the injuries on the outer part of the anus.

25. It appears however that pw3 evidence created doubt as to whether there was penetration. He said in his evidence that;“I called the clinical officer who examined the minor. There was no penetration. We treated the minor and gave pep. We advised the lady to report to the police.”

26. From there he went and head to produce the P3 form which showed that there were injuries and tears on the outer part of the anus.

27. Can one conclusively say that there was penetration as defined under Section 2 of the Sexual Offences Act? I think one would have been categorical if at all the clinical officer was clear and left no doubt as to whether penetration occurred or not. If there was penetration it would have been easier to say so.

28. In my considered view, the respondent left some doubt which ought to have been construed in favour of the appellant. The evidence is not clear whether there was partial or total penetration despite the visible injuries as seen by the parties.

29. For this reason, the trial court ought to have reduced the charge to that of Attempted Defilement under the provisions of Section 9(1) and (2) of the Sexual Offences Act. This court is left with no other option but to do so. The appellant escapes albeit narrowly, thanks to the inconclusive evidence of PW3. The charge facing the appellant was grave and there was therefore need to tie all the loose ends so to speak. Condemning him for life in prison custody demands that the matter ought to have been proved beyond any shadow of doubt.

30. For the reasons given above this court does not see the reasons to dwell on the other grounds raised by the appellant which I do not find them sufficient to oust the trials court findings. The defence by the appellant besides being unsworn was of no probative value.

31. In the premises, the appeal is hereby allowed, the sentence of life imprisonment is set aside and substituted with a custodial sentence of (ten) 10 years as from 31st January 2017.

32. Orders accordingly.

DATED SIGNED AND DELIVERED VIA VIDEO LINK THIS 9TH DAY OF JUNE 2022. H K CHEMITEIJUDGE