[2022] KEHC 11777 (KLR)

Kiptui v Republic (Criminal Appeal 194 of 2017) [2022] KEHC 11777 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11777 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Criminal Appeal 194 of 2017

EM Muriithi, J

June 9, 2022

Between

Stephen Kiplimo Kiptui

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence by Hon. R. Yator SRM in Eldama Ravine P.M Court Criminal Case No. 597 of 2014 delivered on 29/9/2017)

Judgment

Introduction 1. The appellant Stephen Kiplimo Kiptui (‘the appellant’) was charged with the offence of defilement contrary to section 8 (1) as read with section (2) of the Sexual Offences Act No. 3 of 2006. The particulars were that on April 19, 2014 at [Particulars withheld] Village in Mogotio District within Baringo County, he intentionally and unlawfully did cause his penis to penetrate the vagina of JK a child aged 7 years. He also faced an alternative charge 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 on the same day and place, he intentionally and unlawfully did an indecent act to JK a child aged 7 years by touching her breasts, thighs and buttocks.

2. Upon a full trial the appellant was convicted on the main charge of defilement and sentenced to life imprisonment.

The appeal 3. On appeal from conviction and sentence, the appellant lodged this appeal setting out 10 amended grounds of appeal as follows:a.“Medical evidence tendered by the prosecution was unreliable, inconclusive thus did not corroborate evidence of the minor.b.Evidence surrounding the ordeal hardly picture that the minor was defiled on the material day and time.c.Penetration was not proved to meet the purpose of defilement.d.Some material discrepancies in the prosecution case.e.Age of the alleged minor not canvassed with credible evidence.f.Alleged identification of the accused at the scene is devoid of merits it creates a benefit of doubt upon the accused/appellant.g.The exhibits brought are faked not certified as required.h.Defence tendered by the appellant was concrete but the trial failed to consider the same as evidence under section 169(1) Criminal Procedure Code.i.The life sentence meted on the appellant is unfair and non-meritorious to the 2010 Constitution.j.Rights of representation by counsel were not explained.k.Right to tender submissions under section 210 CPC was not granted.

4. Before the appeal could be heard, the appellant filed a notice of motion under certificate of urgency dated 7/2/2019, seeking principally leave to adduce new evidence in this appeal and/or in the trial court. The new evidence referred to by the appellant is contained in 2 affidavits sworn by the complainant’s parents who testified in the trial court as PW3 and PW6.

Evidence 5. PW1 Winrose Chebet, a clinical officer at Mogotio Health Centre examined the complainant and filled her P3 form on 28/4/2014. The complainant, who was accompanied by her mother, was aged 7 years with a history of being defiled by someone known to her. On examining the complainant, she could not communicate and she was not calm. The complainant had previously been treated at Kisana Health Centre and Bahati Health Centre and given medication. The complainant had lacerations on both labia minora and majora, the hymen was torn and there was a vaginal discharge. The laboratory investigation revealed presence of moderate pus cells, and bacterial. She could not examine the clothes as they were not brought and she classified the degree of injury as grievous harm. She produced the P3 form, PRC form and a continuation report from Mogotio Health centre as exhibits in court.

6. On cross examination, she stated that she only examined the complainant at Mogotio and not at Bahati. The form from Bahati showed fresh lacerations and that the child was defiled.

7. PW2 the complainant, a nursery pupil gave unsworn testimony that on the material day at 4. 00 pm, the appellant, who was coming from his home which is near theirs, held her. She testified that she was at home with her siblings namely B, C and C as her mother had gone to the kiosk and her father was at the shamba, as follows: “The accused is called Stephen and there was no one and Chepkoech had not yet arrived and Stephen arrived first and he came and did me those things. Accused found me in the house where I was alone. He did not tell me anything. He held my hand and took me to our home where there was no one. He sat on container for fetching water then he did bad manners and he told me I sleep on his stomach. He had put on his clothes he did not remove. I did not undress and he did not remove any of my clothes. No one removed my pant. I slept on his stomach and he lifted me to his stomach he then removed my pant and he lifted my dress and he had intercourse with me after he removed his (animal) he used to defile me and he inserted into my body (shy’s away to name) he put into my private parts (points out) and I felt pain and when I wanted to cry he closed my mouth using his hand and did not tell me anything. No one arrived when he was doing that. It had not rained when he did that. The accused then left and I bled from my parts. I continued with my work. I did not put on the pant he had removed. My mother and father arrived later and I informed my father DKK and he took me to hospital and no one checked my parts and my mother talked with me and she is EK and she checked my private parts and my father took me to hospital the same day and I was examined by the doctor who injected and gave me drugs and I was not admitted. We went to the Police my father took the clothes I was wearing and it was a red dress. The clothes in court are mine (shown navy blue trouser) it is the trouser I was wearing and he removed it and I did not wear it again…..he had never defiled me before. I had never seen him disagree with my parents.”

8. On cross examination, she stated, “you came to my home. You did not tear my pant and you did not torch my breasts. You pushed me into the house. I screamed my mother arrived first and I first told my mother. No one else came to see me apart from my parents.” On re-examination, she stated that, “my father arrived when Stephen had left.”

9. PW3 DKK, the complainant’s father, testified that the complainant was aged 7 years. On the material day at 4. 00 pm, he was at the shamba weeding vegetables while his daughter was playing with other children and the child said the appellant had defiled her. When he went home the mother told him the child had been defiled and his wife was EK. He went to the chief Olkokwe the same day without the child and the chief referred him to Olkokwe police who advised him to take the child to the hospital. He took the complainant to Bahati hospital where she was given medicine then referred to Mogotio hospital for examination. After the complainant was discharged, they went to Mogotio police and he knew later that the appellant was arrested. The appellant who was his nephew had never defiled the girl before and he had never disagreed with the appellant. He did not have the child’s birth certificate as the mother had misplaced it and he had informed the chief.

10. On cross examination, he stated that from the shamba to where the children were playing was around 10 metres away and he had seen the appellant at his homestead going round, and when he asked him if he needed anything, he answered in the negative, so he continued with his work. He did not hear any children scream.

11. PW4 APC John Cherotich attached at Kisanana AP post, was on 17/6/2014 accompanied by his colleague Kenneth Ambani where the area chief Oldebes location led them to a homestead where the appellant was hiding and they arrested him. They did not know the appellant prior to the arrest and the chief gave them a note from OCS Mogotio informing them that the appellant was facing defilement allegations.

12. PW5 CPI Rosaline Sumbate of Mogotio police station and the investigating officer, testified on 24/4/2014, she was at the gender office when Kanseyan in the company of his wife and their 2 young children reported that their child had been defiled by the appellant. She tried to interrogate the complainant but she refused to talk. At that time, the complainant did not have any inner clothes, and she requested them to bring them. The offence was committed on 19th April but the report was made on 24th April 2014. The appellant was their neighbor and when she interrogated him, he denied the charges. P3 form was filled at Mogotio health centre although the child had been taken to Bahati hospital by the father on 20th April 2014. She did not visit the scene and she produced the complainant’s short and inner wear as exhibits in court.

13. On cross examination, she stated that the report was first made at Olkokwe police station and referred to Mogotio police station, and when the complainant came to the station, she was not wearing a pant. On re-examination, she stated that the complainant’s parents said she was aged 7 years.

14. PW6 EKK, the complainant’s mother testified that on the material day, she had gone to the shop to purchase items and she left the children at home. When she returned at around 4. 00 pm, the complainant informed her that the appellant had defiled her. She had seen the appellant at the shop and he did not tell her anything. Her home was around 100 metres from the shop. When she saw that the complainant had blood and pus around the private parts, she went to inform the chief Chomiek Stephen Rotich, who assured her he would arrest the appellant. On cross examination, she stated that the complainant was taken to the hospital by her father.

Submissions 15. The appellant and the respondent filed their respective submissions to the application dated February 7, 2019 on 28/7/2020 and 3/8/2020.

Analysis and Determination 16. Although the respondent does not oppose the application and in essence the appeal, this court must still exercise its duty of re-evaluating and re-analyzing the evidence at trial afresh in order to draw its own independent conclusion on whether the application and appeal are merited or not.

17. Grounds 1, 2, 3, 5 and 6 all touch on the issue of proof of the ingredients of the offence of defilement and therefore, the issues for consideration from the grounds of appeal are: whether prosecution proved its case beyond a reasonable doubt; whether there were material discrepancies in the prosecution’s case, whether the exhibits were fake and/or uncertified, whether the appellant’s defence was considered, whether the sentence was unfair, and whether the appellant’s rights to representation and to submit on a case to answer were explained and/or infringed.

18. The law is clear that in a criminal trial, the prosecution bears the burden of proving its case beyond reasonable doubt. In Baten v Baten (1950) All 2 ER at page 459 it was held that: “In criminal cases the charge must be proved beyond reasonable doubt. The requirement to proof means that facts must be established to the satisfaction of the court. Facts do not represent an objective truth but sometimes an accurate, or sometimes a crude estimate truth of the most convincing version of events. Technically evidence is conclusive only where by virtue of a rule of law, it cannot be contradicted.” (Emphasis mine.)

19. The essential ingredients of defilement which the prosecution must prove are age, penetration and the perpetrator of the crime.

20. On age, the complainant was taken for age assessment at Eldama Ravine District Hospital on 28/1/2015 and the medical superintendent estimated the same to be 9 years. I find that with the production of the age assessment report, the issue of age was settled.

21. On proof of penetration, there was overwhelming evidence that the complainant had been defiled. PW1 testified that, “On examination of genitalia there were lacerations on both labia minora and majora and hymen torn. Presence of vaginal discharge we went to the laboratory and found moderate pus cells and presence of bacterial and HIV test and she was negative and I could not examine the clothes because they were not brought the degree of injury was grievous harm.”

22. The question that remained to be proved beyond reasonable doubt was that of the identity of the attacker. The complainant gave self-conflicting testimony when she stated that, “the accused (points out) held me while coming from his home which is near ours. I was at home with children namely B, C and C who are our children and C is older…..the accused is called Stephen and there was no one and C had not yet arrived and Stephen arrived first and he came and did those things. Accused found me in the house where I was alone. He did not tell me anything. He held my hand and took me to our home where there was no one. He sat on container for fetching water then he did me bad manners and he to me I sleep on his stomach. He had put on his clothes he did not remove. I did not undress and he did not remove any of my clothes. No one removed my pant. I slept on his stomach and he lifted me to his stomach he then removed my pant and he lifted my dress and he had intercourse with me after he removed his (animal) he used to defile me and he inserted into my body (shy’s away to name) he put into my private parts (points out) and I felt pain and when I wanted to cry he closed my mouth using his hand and he did not tell me anything. No one arrived when he was doing that….The accused then left and I bled from my parts…My mother and father arrived later and I informed my father David Kolongei Kipkoech and he took me to hospital.”

23. On cross examination, PW2 further contradicted herself when she said that, “I screamed my mother arrived first and I first told my mother.”

24. According to PW3, he was at the shamba weeding vegetables and the complainant was playing with other children. When he arrived home, his wife, PW6 told him that the complainant had been defiled. On cross examination, he stated that, “from the shamba to where the children were playing is around 10 metres away and I had seen you at my homestead going round and I asked you if you needed anything and you said you did not want anything….I did not hear any children scream.”

25. He stated that he reported the matter to Olkokwe and took the complainant to Kisanana and then to Bahati and lastly to Mogotio.

26. PW5, the initial investigating officer testified that, “Offence occurred on April 19, 2014 and they reported on 2April 4, 2014…P3 form was issued and issued at Mogotio Health Centre and child had been taken to Bahati Hospital by the father on 20th April 2014 and when they came back to the station I referred them to Mogotio Health centre.”

27. PW6 testified that, “When my child told me the same I saw she had blood and pus around the private parts and I went to the chief- Chomiek Stephen Rotich whom I informed and told me he was going to arrest accused. It was on Saturday when child was defiled and I took her following day to Kisanan then referred to Bahati District hospital ….I reported to police at Olkokwe whom referred me to Mogotio Police Station.”

28. On cross examination, she stated that it was PW3 who took the complainant to the hospital.

29. PW1 testified that the complainant was accompanied to the hospital by her mother, PW6.

30. From the P3 form, the date and time the offence was reported to the police was on 21/4/2014 at 6. 00 pm. The complainant was sent to the hospital on Thursday the 24th April 2014 while the P3 was filled by PW1 on 28/4/2014, which was 9 days after the alleged offence had taken place. PW1 stated that, “I have a P3 form and I examined the child and filled the form on 28th April, 2014. ” The PRC form which was filled on 21/4/2014 showed that the complainant had fresh lacerations and tenderness. It was commented in the PRC form that, “child already managed in a health centre PEP given.” PW1 stated, I have a treatment chit from Bahati Health Centre which is PRC form….I have a treatment chit from Mogotio Health Centre and dated 24th April 2014. ” Those treatment notes from Kisanana, Bahati or Mogotio were never produced as exhibits to ascertain whether the complainant was treated in all those health facilities. PW1 only produced a continuation sheet from Mogotio Health centre dated 24/4/2014 which only gave a history of how the complainant had been managed at the said facilities.

31. With those glaring inconsistencies in the testimonies of PW2, PW3, PW5 and PW6, it cannot be said without any doubt that it was the appellant who had defiled the complainant. It was not explained why any of the children who were playing with the complainant was not called to testify. It was equally not established why the chief, who the occurrence of the alleged offence was first reported to was not called as a witness. The inordinate delay in having the complainant examined was further not explained. The injuries the complainant had on the material day cannot possibly be the very same ones noted by PW1 when she examined the complainant 9 days later. According to the PRC form filled on 21/4/2014, which was 2 days after the material date, the complainant had fresh lacerations and tenderness. From the above evidence, it is uncertain whether it was the appellant who had defiled the complainant or not.

32. There was no proof beyond reasonable doubt that the appellant committed the offence. In Pius Arap Maina v Republic [2013] eKLR, the court held that, “the prosecution must prove a criminal charge beyond reasonable doubt and any evidential gaps in the prosecution’s case raising material doubts, must be in favour of the accused.” From the foregoing, it is my view that several doubts abound the prosecution’s case, whose benefit must be construed in favour of the appellant. The unsworn testimony of the complainant was insufficient to support a conviction.

33. On whether there were material discrepancies in the evidence of the prosecution witnesses, the court finds that the testimonies of PW2, PW3, PW5 and PW6 were very contradictory. It was uncertain who the complainant had first told about the alleged defilement and who reported the same to the police. It was also uncertain who had taken the complainant to the hospital and when and where the complainant been examined and treated.

34. On whether the appellant’s unsworn defence that he was framed was considered, the trial court observed that, “the two other defence witnesses gave evidence to the extent that the minor could not have been defiled as they saw her walking well and that the charges were false and the elders had tried to resolve the matter out of court saying the child’s father confirmed that the charges were false. I find the evidence of this two defence witnesses to be of no help to the defence as indeed all they said was that they saw the child walk well and had tried to resolve the matter as it was falsehood.”

35. DW2 and DW3, however, admitted that they were not always with the appellant and therefore they could not tell whether he had committed the offence or not. The court is mindful nonetheless that it is not the duty of the accused to prove his innocence.

36. On the unfairness or otherwise of the sentence, the appellant was charged and convicted of defilement contrary to section 8(1)(2) of the Sexual Offences Act. That section provides that, “A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”

37. The complainant was 7 years old and the appellant was sentenced to life imprisonment which was the punishment prescribed by section 8(2) of the Sexual Offences Act. That sentence was thus lawful and, had the conviction been safe, the court would not have interfered with the sentence.

38. However, the DPP has conceded the appeal by Written Submissions filed in the appeal as follows:“These submissions are in response to the application filed by the appellant on 7th February 2019 where the appellant sought for leave to adduce new evidence. The appellant herein was convicted of defilement contrary to section 8(1) as read with section 8(2) of the Sexual offences act. He was sentenced to life imprisonment on 29th of September 2017. By the time this application was filed, the appeal had already been heard and it was pending judgment. In providing new evidence, there is a set of two affidavits sworn by Eunice Kimoi Koech and David Talam Kolonget. This are allegedly the parents of the complainant aged 7 years at the time the offence was committed. Both of them testified against the appellant in the lower court as PW6 and PW3, respectively.The first set of affidavits by the parents of the complainant were sworn on 15th of February 2019 and filed in court on 18th of February 2019. In the affidavits in paragraphs 5 and 6, they stated that they were not in good terms with the appellant at the time this case proceeded in the lower court and that they had fixed the appellant out of revenge and grudge. However, at paragraph 11 of both affidavits, they state that they were forgiving the appellant willfully and voluntarily. It is not clear why they would want to forgive a person who they confessed to have fixed. If they had really fixed the appellant herein, then that means in my view that he had not committed the offence and therefore there was nothing to forgive.Further, submissions and another set of affidavits sworn by the parents of the complainant were filed in court on 28th of July 2020. The submissions are dated 27th July 2020 while the affidavits are dated 17th July 2020. At paragraph 6 of the affidavits the parents of the complainant state that the appellant was wrongfully identified and that the act was committed by someone else. They further state at paragraph 8 that they were misled to believe that it was the appellant who defiled their daughter.It is clear from the new evidence adduced that the parents of the complainant whose evidence was used to convict the appellant is contradicting. At first they state they want to forgive the appellant before stating that the appellant did not commit the offence. These contradictions create doubt on whether the appellant committed the offence. This is a very serious matter where the appellant is serving a life sentence. He has been in custody since September 2017 for an offence which is not clear whether he committed or not. All the doubts created can only be used for the benefit of the appellant herein. I therefore urge court to consider the new evidence adduced and set the appellant at liberty.”

39. This court agrees that the contradictions in the prosecution evidence should be given to the benefit of the appellant and the spirited attempt to correct the situation by application to adduce evidence before the appellate court creates a doubt as to truthfulness of the charge against the appellant.

Orders 40. Accordingly, for the reasons set out above, the conviction and sentence of the appellant for the offence of defilement contrary to section 8(1) as read with 8 (2) of the Sexual Offences Act is quashed and set aside, respectively. The appellant shall be released from custody forthwith unless he is otherwise lawfully held.Order accordingly.

DATED AND DELIVERED ON THIS 9TH DAY OF JUNE, 2022. EDWARD M. MURIITHIJUDGEAppearances:M/S Ochweri Ngamate & Co. Advocates for the Appellant.Ms. Esther Macharia, Ass. DPP for the Prosecution.