[2022] KEHC 12131 (KLR)

Kirimi v Republic (Criminal Appeal E170 of 2021) [2022] KEHC 12131 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12131 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E170 of 2021

TW Cherere, J

June 9, 2022

Between

Eftael Kirimi

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence n Tigania Criminal S.O No. 20 of 2020 by Hon. R. ONGIRA RM on 18TH October 2021)

Judgment

1. Eftael Kirimi (‘the appellant’) was charged with the offence of defilement contrary to section 8 (1) as read with 8(2) of the Sexual Offences Act No. 3 of 2006. It was alleged that on 11th May 2020 at Karama location in Tigania East Sub-County within Meru County intentionally caused his penis to penetrate the vagina of AK a child aged 13 years.

2. 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. It was alleged that on the same day and place, he intentionally caused his hand to touch the vagina of AK a child of 13 years using his fingers.

3. Appellant was tried, convicted on the main charge and subsequently sentenced to 20 years’ imprisonment.

Appeal 4. Dissatisfied with the conviction and sentence, the appellant lodged this appeal setting out 8 grounds of appeal collapsed as follows;1. That the learned trial magistrate erred in failing to consider the evidence that had been adduced by the complainant before she was declared a refractory witness.2. That the learned trial magistrate erred law and fact by failing to note that the charge sheet was defective.3. That the learned trial magistrate erred law and fact by failing to note that there was contradiction in the evidence of the prosecution witnesses.4. That the learned trial magistrate erred in law and fact by shifting the burden of proof to the appellant and failing to note that the burden and standard of prove by the prosecution was not discharged and thus the prosecution case was not proved beyond reasonable doubt as provided for by law.5. That the learned trial magistrate erred in law and fact by failing to take into account the appellants defence and his defence witnesses.6. That the learned trial magistrate erred in law and fact by not invoking the time spent in custody while sentencing the appellant as stipulated in section 333(2) of theCriminal Procedure Code.

Analysis and determination 5. The appeal proceeded by way of written submissions. This being a first Appeal, this Court has a duty to evaluate the evidence, analyze it afresh and draw its own conclusion, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify as did the trial Court, and give due allowance for that (See Okeno vs. Republic [1972] E.A.32).

6. The elements constituting the offence of defilement are proof of penetration, the age of the minor and the identity of the assailant. (See C W K v Republic[2015] eKLR).

Age of complainant 7. It is trite that the age of a minor is a critical component of a defilement charge and that it is an element which must be proved by the prosecution beyond reasonable doubt. In Kaingu Kasomo vs. RepublicCriminal Appeal No. 504 of 2010 the Court of Appeal stated as follows:“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.

8. The focus under section 8 of the Act is that the age can be proven through other documentary evidence in the absence of a birth certificate. The clinical officer that filled complainant’s P3 form on 12. 05. 2020 estimated her age to be 14 years. From the foregoing, I find that Complainant’s age was between 13 and 14 years when the offence was allegedly committed.

Penetration 9. Section 2 of the Act defines penetration to entail: -“partial or complete insertion of a genital organ of a person into the genital organ of another person.”

10. The P3 form PEXH. 1 reveals that complainant had reddening and bruises on the urethra and labias. I therefore find that the trial magistrate correctly found that penetration was proved.

Appellant’s culpability 11. In her testimony, on August 14, 2020 when Complainant was called to the witness box, she stated that Appellant was unknown to her and she did not see him on the material day. The prosecution made an application under section 161 of the Evidence Act, cap 80 Laws of Kenya and the court declared the Complainant as a hostile witness. In cross-examination to determine the truthfulness of her statement to the police, Complainant maintained that she did not sleep with the Appellant. In cross-examination by defence counsel, Complainant stood by her word that Appellant did not defile her. In his sworn defence, Appellant denied the offence.

12. In considering the evidence of complainant, the trial magistrate correctly appreciated the holding in Abel Monari Nyanamba & 4others v Republic[1996] eKLR where the court held as follows:“The evidence of a hostile witness is indeed evidence in the case although generally of little value. Obviously, no court could found a conviction solely on the evidence of a hostile witness because his unreliability must itself introduce an element of reasonable doubt.” (Emphasis added).

13. Although Complainant was declared a hostile witness, her cross-examination reveals that the only link to her statement with the appellant was that he was her boyfriend. At no time did the complainant record in her statement to the police that appellant had defiled her. The basis on which appellant was declared hostile was unfounded for the reason that her initial statement clearly exonerated the Appellant.

14. In the case of Burunyi & anor v Uganda Cr Appeal No 1968 EA 123, Sir Udo Udoma the then CJ held:“It is not the duty of the court to stage-manage cases for the prosecution nor is it the duty of the court to endeavor to make a case against an accused where there is none. In a criminal case, the court cannot enter into the arena. The only duty of the court is to hold the scale to see that justice is done according to law on the evidence before it.”

15. The record reveals that throughout the trial, there was no evidence linking appellant to the defilement of the Complainant. It was therefore not open to the trial magistrate to import circumstantial evidence to counter a clear case absolving the Appellant only for the purpose of maintaining a conviction that was not warranted.

16. From the foregoing, I find that the trial magistrate erred by unnecessarily straying into the arena of the prosecution and by attempting to make a case for the Prosecution where there was none.

17. In the end, I find that that the prosecution case was not proved beyond any reasonable doubt and Appellant was not appropriately convicted. Accordingly, this appeal succeeds. The conviction is quashed and the sentence set aside. Unless otherwise lawfully held, it is ordered that the appellant shall be set at liberty. It is so ordered.

DELIVERED AT MERU THIS 09th DAY OF June 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiAppellant - Present in personFor the State - Ms. Mwaniki (PPC)