[2023] KEHC 1568 (KLR)

Kivunjo v Republic (Criminal Appeal 46 of 2018) [2023] KEHC 1568 (KLR) (15 February 2023) (Judgment)

Neutral citation: [2023] KEHC 1568 (KLR)

Republic of Kenya

In the High Court at Kitui

Criminal Appeal 46 of 2018

RK Limo, J

February 15, 2023

Between

Francis Mutemi Kivunjo

Appellant

and

Republic

Respondent

(An Appeal against the Conviction and Sentence under Section 8(1) & (4) of Sexual Offence Act No. 3 of 2006 vide Mwingi Principal Magistrates Court Sexual Offence Case No. 769 of 2014. )

Judgment

1. Francis Mutemi alias Kivunjo the Appellant herein, was charged with the offence of defilement contrary to Section 8(1) & (4) of Sexual Offence Act No. 3 of 2006 vide Mwingi Principals Magistrate’s Court Sexual Offence Case No. 769 of 2014.

2. The particulars of the offence as captured in the charge sheet are that; the Appellant on the 21st day of December, 2014 in Mwingi Central District within Kitui County did an act which caused the penetration of his male genital organ namely penis into the female genital organ namely vagina of (name withheld), a girl aged 16 years old.

3. He also faced an alternative count of indecent act with a child but since he was convicted of the main charge, the alternative count is not relevant here.

4. The Appellant did deny committing the offence and the record of proceedings from the trial court shows that the Prosecution called a total of six witnesses. The evidence tendered are as follows: -

5. (PW1), the complainant told the court that she was born in 1999 and was aged 16 years old. She testified that she was at her brother BK’s house on the material day when the appellant went there looking for her. She stated that the appellant inquired whether the other people in the house had slept to which the complainant replied in the affirmative but instead of leaving, she stated that he remained at the door saying he was looking for her. She stated that he held her mouth and took her to his house where he removed her clothes and defiled her before carrying her to a ditch where he left her there. She was found in the same ditch the following morning. She stated that she was taken to Mwingi General Hospital for treatment.

6. MK (PW2) told the court that she was married to PW1’s brother and that on the material day, she prepared supper and retired to bed at around 8PM leaving PW1 awake. That after some time, her husband woke up to find PW1 absent from the house and he proceeded to lock the door. That the couple started looking for the Complainant the following morning and found her in a ditch and when initially asked why she was in the ditch she responded that she did not know but she later told them that the Appellant had defiled her.

7. BK (PW3), Complainant’s brother told the court that he was at his home on the material night when he heard the Appellant asking whether he was home which was not unusual as the appellant frequented his house. The witness stated that he woke up later to find the lights and radio in his house on but found the Complainant was missing from her bed. He testified that he switched them off and locked his house door in manner which PW1 could still let herself back into the house. That the following morning, he woke up to go to work but noticed that the Complainant was missing. He left and returned later to accompany his sister in looking for the complainant and found her in a ditch.

8. Joseph Tovo (PW4) a senior dental technologist told the court that he examined PW1 on 13th January, 2015 and estimated that she was about 16 years old at the time. He produced age assessment report as Pexh (4)

9. Dr Emma Nzioka (PW5) from Mwingi District Hospital testified on behalf of his colleague Dr Bulimo, who the witness stated that he completed a P3 form after examining PW1 on 8th January, 2015 adding that, the examination, the date of defilement was established that PW1’s hymen was not intact, that she had undergone Female Genital Mutilation and that there was no injury seen. However, upon vaginal examination, it was recorded that she had a laceration. The witness produced an Outpatient Card as Pexh (1), a Lab Request Form as Pexh(2) and Post Rape Care Form as Pexh (5).

10. PC Peter Kiu (PW6) the investigating officer from Mwingi Police Station indicated that he was at the police station on 22/12/2014 when PW1 and PW3 made a report on defilement. The officer stated that he escorted the complainant to hospital in the company of his colleague for medical examination. The officer stated that he conducted his investigations and charged the appellant after he was arrested by members of the public.

11. When placed on his defence, the Appellant denied committing the offence stating that he was at Mukuthu Market on the material day and stayed until 9PM when he went home accompanied by his brother (DW2) whom he called as a witness to back up his alibi. He stated that he was arrested by members of Public while at Mukuthu Market and later charged with defilement. He claimed he was framed wondering why the prosecution presented witnesses from only the same family. He however, conceded that he lived only 100 metres away from where the Complainant resided.

12. Daniel Musili Mutemi (DW2) testified and supported the Appellant narrative that they were together with him at Mukuthu Market on the material day and went home at 9PM adding that, their home was a 40 minutes’ walk.

13. The trial court evaluated the evidence tendered and found that the Prosecution had proved their case against the Appellant to the required standard and proceeded to render a conviction and sentenced him to serve 15 years’ imprisonment.

14. The Appellant felt aggrieved against both conviction and sentence and preferred this appeal raising the following grounds namely: -i.The learned Trial Magistrate erred both in law and fact by convicting the appellant while relying on the evidence that the girl was below 18 years without considering that no birth certificate was produced before the court to prove the same.ii.The pundit trial magistrate erred in both law and fact by convicting the appellant relaying on doctor’s evidence that the girl was defiled without considering that although the girl’s virginal minora was broken, there was no clear prove of who broke it since the accused was not examined.iii.The pundit trial magistrate erred in both law and fact by convicting the appellant relaying on the doctor’s evidence without considering that after the minor was taken to hospital, no blood was seen neither was any spermatozoa was seen which could prove that the appellant defiled her.iv.The trial pundit magistrate erred in both law and fact by convicting the appellant relaying on the evidence adduced before the court without considering that the evidence was full of loop holes and contradicted which could not certain a conviction.v.The learned trial magistrate erred in both law and fact by convicting the appellant without considering that all the witnesses belonged to one family and they were his enemies who could plot to upload a heavy burden upon his shoulders.vi.The learned trial magistrate erred in both law and fact by rejecting the appellant’s alibi defence which was strong enough to beat all the witness statements.

15. The Appellant in his written submission added additional grounds but without seeking leave of this court, as stipulated under section 350 (2) of the Criminal Procedure Code. The additional grounds raised are these incompetent and will not be considered in this appeal.

16. In his written submissions, the Appellant in summary contend that penetration, a key ingredient in the offence, was not proved. He submits that the Complainant as a witness was not credible and the trial court should not have relied on her testimony adding that the Prosecution’s Case left many grey areas.

17. The Appellant also takes issue with the complainant’s testimony submitting that she was not a credible witness. He cites his reasons for this submission to be that she indicated in her testimony that she wanted to go and shower when the appellant went to her brother’s house but that in another instance, she testified that she had gone to sleep.

18. On the issue of penetration, the appellant submits that the prosecution failed to prove this element. He submits that the complainant was examined in hospital 17 days after the date of the alleged offence. Secondly, he took issue with PW3’s testimony stating that the witness stated that he took the complainant to hospital without indicting precisely when he did that. The appellant has placed reliance on the case of Omari Ismael Mazzha vs R(2017) eKLR andP.K.W vs R (2018) eKLR where the court quashed a conviction after making the finding that penetration had not been proven. In P.K.W vs R (supra) court reached this conclusion after determining that the complainant was examined by two medical experts who reached different findings on the element of penetration. The initial examiner recorded that the complainant’s hymen was intact while the other medic recorded that the complainant’s hymen was reddened and had widened and further that the complainant had a foul smelling discharge.

19. The appellant also faults the trial court for failing to conduct a viore dire before taking PW1’s evidence. He submits that she was a minor at the time as such, her testimony was not received properly by the trial court. He has cited the case of Joseph Opando vs R Cr. App. No. 91 of 1999, where the Court of Appeal outlined the stages to be followed in determining whether or not a child of tender years may give sworn evidence as follows:‘‘There are two stages which must be followed and must appear on the record of the trial court. First, the examination must endeavor to ascertain whether the witness understands the meaning, nature and purpose of the oath. The question or questions by the court must be directed to that. If the court from the answer it receives from the witness is satisfied that the witness understands the meaning, nature and purpose of the oath, the witness must then be allowed to give sworn evidence. Stage two of the matter does not come into play. Where however the witness does not understand the meaning and the purpose of the oath, stage two of the examination then follows. The witness is examined by the court to ascertain whether the witness is possessed of sufficient intelligence to justify the reception of his or her evidence though not on oath. This examination must equally appear on record. Simple elementary questions would normally be asked like date, the day, the school the witness is attending and other matters. If the court is satisfied from the answer to such questions that the witness is possessed of sufficient intelligence, the court will allow the witness to give unsworn evidence.’’The above observations are in respect to children of tender years (11 years and below).

20. However, in this matter, there is nothing to show that the Complainant aged 16 years did not understand the meaning of an oath or the importance of giving evidence or oath. A child of tender years, requires to be interrogated via viore dire examination but, children of 12 years and over need not be subjected to viore dire examination before being sworn unless a trial court has reasons to belief that the child does not understand the nature of oath.

21. The appellant also faulted the trial court for failing to consider his alibi defence. He has also submitted that he believed that the complainant was over eighteen years old citing deceit on her part. He has also submitted that, there was no evidence of force on the complainant

22. The Appellant concluded his submissions by urging the Court to re-evaluate the evidence afresh based on the case of Gabriel Kamau Njoroge versus Republic [1982-88] KAR,Ouma versus Republic, Criminal Appeal No, 91 of 1985 andSalim Juma Dimiro versus R, Criminal Appeal No.114 of 2004 and to find that the Prosecution failed to prove its case beyond reasonable doubt.

23. This court has considered this Appeal and the grounds advanced for the record, this appeal is not opposed. The State through Mr. Okemwa the Learned Counsel for the Director of Public Prosecution conceded that there was noncompliance of Section 33 of the Evidence Act with respect to Medical Evidence tendered by PW5. I will address that issue shortly.

24. The duty of this court being the first appellate is stated in the case ofOkeno 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.”

25. The only issue for determination in this appeal is whether the Prosecution proved its case to the required standard to warrant a conviction.

26. The ingredients of defilement are penetration, age of the victim and positive identification of the offender.To begin with age, though the Appellant claims that the age of the Complainant was not well established, this court has re-evaluated the evidence tendered during trial and in particular the evidence of PW4. (The medical expert) and finds that the age of the victim was established to be 16 years. The age assessment report was tendered as P Ex 4. I find that the assessment report corroborated the evidence tendered by PW6 which means that the element of age was proved beyond any doubt.

27. On the question of penetration, the evidence of the Complainant was that she was defiled on 21st December, 2014. The Appellant has faulted her evidence on grounds that she lacked credibility and the fact that she was examined on 8th January, 2015, which was approximately 17 days after the incident. There was no explanation given for the delay in taking the victim for medical examination but that in my view, the omission is not fatal because it is evident that the victim reported the incident on December 22, 2014 which was the following day after the incident happened on the night of December 21, 2014. It is normal that after reporting an incident of this nature, usually, the victim is sent to the nearest hospital for medical checkup and treatment and the victim has no say in these attendant processes. She cannot therefore, be faulted on account that she was examined after 16 days of reporting. What I however, find fatal to the Prosecution’s Case, is that the doctor who examined the victim and filled the P3 form was not availed to tender the medical treatment chit and P3 Form. Dr. Emma Nzioka (PW5) testified but laid no basis to testify on her behalf as stipulated under section 33 of Evidence Act. This fatal omission is conceded by the Respondent and the reasons for concession are obvious.

28. The provisions of section 48 of the Evidence Act provides as follows: -‘‘When a Court has to form an opinion upon……. science…..opinions upon that point is admissible if made by persons specially skilled in such ……science…..’’’

29. The record of proceedings indicates that PW5 testified that PW5 testified on behalf of one Dr. Bulimo but before the Prosecution presented the witness, to testify it should have laid basis as stipulated under section 33 of the Evidence Act which allows for production of statements or evidence of person whose attendance cannot be procured for good reasons like expenses or unreasonable delay. The law also requires that the person who is testifying on behalf of a witness who cannot be procured must tell the court the length of period the two have worked together and if he/she is familiar with her handwriting and expertise. In this instance PW5 did not reveal whereDr. Bulimo was and how long they had worked together. His expertise as required under section 48 of the Evidence Act was also not clearly established thus rending the medical evidence tendered hearsay and inadmissible in evidence. The trial court erred in admitting the medical evidence tendered by PW5 and in absence of medical report and in the absence of non-compliance of section 124 of the Evidence Act (Which allows a court to rely on the victim’s evidence to render conviction, the ingredient of penetration was not proved to the required standard.)

30. This court finds that flowing from the above, that the trial court fell into error by, one admitting inadmissible medical evidence from PW5 and secondly, by relying on evidence that was technically hearsay evidence to render a conviction. In the absence of proof of penetration, whether partial or complete, then conviction cannot be sustained in matters of defilement.

31. It is on that ground alone, that this court finds merit in this appeal. This court could have ordinarily ordered for a retrial but given the fact that this offence took place almost eight years ago, and given the circumstances of the cases, a retrial would not serve the interest of justice. The only just finding is to allow this appeal, set aside conviction and sentence. The Appellant having spent 8 years in jail must have perhaps learnt useful lessons. He is hereby acquitted and shall be set free forthwith unless lawfully with held

DATED, SIGNED ANDDELIVERED ATKITUI THIS15THDAY OF FEBRUARY, 2023. HON. JUSTICE R. K. LIMOJUDGE