[2022] KEHC 18113 (KLR)

KKT v Republic (Criminal Appeal 30 of 2019) [2022] KEHC 18113 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 18113 (KLR)

Republic of Kenya

In the High Court at Garsen

Criminal Appeal 30 of 2019

SM Githinji, J

May 5, 2022

Between

KKT

Appellant

and

Republic

Respondent

(Appeal from Original Conviction and Sentence in Criminal Case No. 91 of 2017 of the Principal Magistrate’s Court at Lamu Law Court-T.A. Sitati, PM dated 31st July, 2019)

Judgment

CORAM:Hon. Justice S.M.GithinjiMr Orwa for the stateAppellant in person 1The appellant was charged with defilement contrary to Section 8(1) as read with section 8 (2) of the Sexual Offences Act No 3 of 2006. The particulars of the offence are that on the March 24, 2017 in Lamu West Sub County within Lamu County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of LK a child aged 9 years old. The appellant also faced an alternative charge of indecent Act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006.

2The particulars of which are that on the March 24, 2017 in Lamu West Sub County within Lamu County, the Appellant intentionally touched the vagina of LK a child aged 9 years old with his penis.

3Aggrieved by the sentence and the conviction of the trial court, the Appellant lodged an appeal on the following grounds:1. That the learned trial magistrate erred in law and fact by failing to consider that the prosecution witnesses failed to discharge the burden of proof as required by the law.2. That the learned trial magistrate erred in law and fact in convicting him without considering that the prosecution witnesses were untruthful and thus their evidence could not form basis for a proper conviction.3. That the learned trial magistrate erred in law by sentencing him to life imprisonment without proper finding that the charge of defilement was not proved beyond reasonable doubt.4. That the learned trial magistrate erred in law and fact by convicting him without considering his defence thus occasioning a miscarriage of justice.5. That the learned trial magistrate erred both in law and facts by failing to consider that there were no cogent reasons to linking the appellant to the commission of the alleged offence hence the conviction was against the merits of the entire case.

Background 4PW1 is the victim’s mother. She told the court that she is married with 10 children. On March 27, 2017 she received a call from K who told her that people at the market were saying that the victim was walking with her legs apart and that she was also urinating frequently.

5She advised him to take the victim to the hospital. That she took her the following day and the results showed that she was defiled. She further testified that her daughter M called her and told her that the victim had been beaten. She decided to travel to Lamu. The doctor at Tore advised them to go to King Fahad Hospital. They went there and the doctor examined her private part and concluded that there was evidence of penetration. She also observed that she had marks on her back showing that she had been beaten.

6She went to the victim’s school and the teacher told her that K is the one who beat her up. The victim told the teacher that she was changing when the accused took her. He removed his own clothes and put his thing in hers. She was told if she tells anyone, the appellant would kill her.

7She as well stated that the victim said that the accused beat her when she wrote his name down as the person who made her walk with her legs apart. She further told the court that it was then that she decided to go to the police station where she reported that her child had been defiled. At the police station the victim said that the appellant committed the act on Friday. She said that she screamed and resisted and after the appellant finished, he told her if she told anyone, he would kill her.

8At the hospital the doctor concluded that there were signs of penetration and that she had a UTI.

9At cross examination, she stated that the accused is her son in law married to her daughter. That the victim lived with her daughter S and the victim was defiled while living with her sister S. That it was the appellant who told her that he suspected that the victim had been defiled. She also told the court that she knew that the appellant and S took the victim to Tore Hospital. That she went to the police station and reported that the child had been defiled. That the lady who washed clothes saw the paper where the victim wrote the appellant’s name.

10She told the court that the victim told her she was defiled when she was changing to go to the market and that the appellant told the victim if she tells anyone, he would kill her. That she was present when the teacher was questioning the victim.

11PW2 LK, the victim, gave unsworn testimony after a voire dire examination. It is noted that the victim was overcome by emotions during examination in chief. She informed the court that she lives with her sister and the appellant. She narrated that she was coming from tuition when she met the appellant. She narrated how the appellant called her, removed her clothes and likewise removed his clothes. That he put his thing in her and she screamed for help. She also stated that she put on her clothes and went to the market. That her sister noted that she was not walking well.

12She told the court that when she was taken to the hospital, the results showed that she had been defiled. That her sister asked her who had done it and that if she could not say it, she should write it down. That she wrote the appellant’s name, prompting the appellant to take a stick and beat her up. She also told the court that she realized he was going to finish her, and took refuge at her sister’s place at Bujiri. That her sister arrived from the market and called her mother. She spoke to her mother who told her not to leave the house.

13That on the following day when her mother arrived, they went to the main hospital in Lamu where she was examined. She also stated that she was lying on her back and appellant was on top of her when he put his penis in her but not fully.

14Upon cross examination, she told the court she did not recall for how long she had lived with the appellant. She also told the court that she would leave school and spend time with Selina at the market. She informed the court that the incident happened in the appellant’s room, as on that day she left school and went straight home. While she was changing her clothes, she met the appellant. The main door to the house was closed but not locked. She explained that there was a curtain at the door. She recounted how the incident happened on that day.

15She told the court that she saw the appellant when she entered the house and that when she got to her room, she closed the door before she started changing. That the appellant forced her to remove her clothes. He did not remove his trouser and did not put his thing in hers completely. She also told the court that she did not tell her sister that bad things were done to her.

16PW 3 MWM, told the court that she recalled the events of March 28, 2017. That she had left work and was on her way home. When she got home, she called her children because she knocked on the door and they did not open. That upon enquiry, they told her that her sister the appellant were in her room and that the appellant beat her up.

17She told the court that when she looked at her, she noticed that she had swellings on her shoulder blades, neck and back. That she bought Panadol and gave it to her. She also told the court the victim was crying and that she called her mother and reported that the victim was beaten up. The appellant and his wife arrived after a short while.

18She informed the court that the victim told her that the appellant beat her up because she wrote his name down as the person who had defiled her. At that point she ran to her house.

19On cross examination, she stated that she had known the appellant for four years. That the victim had wounds all over her body, she was swollen and she also had marks all over her body as evidence that she was beaten. That her mother took her to hospital the following morning. That when the appellant arrived, they talked about the victim being beaten and defiled. She suggested they go to the police but they refused.

20PW4 Nicholas Charo Lewa, Clinical Officer at King Fahad Hospital told the court that he completed the P3 Form dated March 30, 2017 for the victim. That the P3 Form indicated that the victim was defiled on March 24, 2017 by a person known to her. That the conclusion on the P3 Form was that the hymen was intact but she had lower abdominal tenderness and frequent urinalysis an indication that she had candidiasis. The conclusion was that she had been defiled. The P3 Form was produced as P. Exihibit 1.

21PW 5 Police Constable Steven Maiya based at Lamu Police Station told the court that the file was handed over to him by PC Ochieng who was on transfer and after perusing the file, he noted that on March 30, 2017 a report was lodged at the station by Nancy Wanja. The report was that the victim had been defiled by a person known to her. That he recorded her statement, issued her with a P3 Form and escorted her to the hospital for examination. That the victim’s mother gave the Investigating Officer a birth Certificate that shows the victim was born on February 18, 2006.

22At the close of the prosecution case, the trial court found that a prima facie case had been established and the Appellant was placed on his defence. The Appellant elected to give sworn evidence and stated that he had had a bad relationship with the mother in law and that this was the second time she had brought him to court over fabricated charges. He told the court that when he was living with them, they were using the victim to victimize him. That he had lived with the victim as his wife’s sister. That at one point, there were allegations that he was planning to kill the victim which allegations were false.

23It was his testimony that he had accommodated the victim as if she was his own child. He told the court that on the material day, he woke up at 3a.m. and went to work as usual and at 6p.m he passed by the market to help S close down the stall and it was normal that the victim would join them at 6: 30p.m. That later on, Selina said that earlier that morning she had observed the girl urinating frequently which was abnormal. That he advised her to escort her to hospital.

24He further said that the next morning, S took the girl to Torre Clinic for checkup and in the evening, she said that the girl was ok but there was frequent urination. That on the second trip to the hospital, he accompanied then to Torre Clinic and the mother in law found them there. That the charges are fabricated and that the time the girl said she returned home differed from the time the mother stated. That the victim usually went for tuition up to 6p.m. He also stated that PC Ochieng never told him of the offences.

Analysis and Determination 25This being a first appeal, this court has a duty to revisit the evidence that was before the trial court, re - evaluate and analyse it and come to its own conclusion. Further, the court has to bear in mind that unlike the trial court, it did not have the benefit of seeing the demeanor of the witnesses and the appellant during the trial and should therefore make an allowance for that. See Okeno v R (1972) EA 32, Eric Onyango Odeng’vR (2014) eKLR.

26I have considered the grounds of appeal, the respective submissions, and the record and the only issue for determination is whether the prosecution proved its case against the appellant.

27In order for the offence of defilement to be proved, the prosecution must establish all the three elements of defilement being the age of the Complainant, proof of penetration and the positive identification of the perpetrator. See Charles Wamukoya Karani v Republic Criminal Appeal No72 of 2013.

28On the element of age, it is trite that in sexual offences the age of the complainant is relevant for two purposes. Firstly, it is meant to prove that the complainant was below 18 years and therefore a child, hence defilement, and actual age is important for purposes of sentencing.

29The age of the victim in sexual offences can be proved by production of a Birth Certificate, age assessment by a doctor and by direct evidence of parents or guardian or by observation by the court. In Thomas Mwambu Wenyi v Republic (2017) eKLR cited with approval Francis Omuromi v Uganda, Court of Appeal Criminal Appeal No 2 of 2000 which held that:“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who would professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may be proved by birth certificate, the victim’s parents or guardian and by observation and common sense.”

30In Richard Wahome Chege v Republic (2014) eKLR the Court of Appeal sitting in Nyeri pronounced itself thus:“On the contention that the age of the complainant was not established, it is our considered view that age is not proved primarily by production of a birth certificate.PW2 the mother of the complainant testified that the complainant was 10 years old. What better evidence can one get than that of the mother who gave birth? It is our considered view that the age of the complainant was not only proved by PW2 but supportive evidence was given by PW3 who examined the complainant, and the complainant herself”

31In the instant case, proof of age of the complainant was by the victim as well as the mother. The victim stated that she was 12 years at the time of giving her testimony and at the time of commission of the offence she was 9 years old. Similarly, PW1 who is the victim’s mother presented the court with the victim’s birth certificate showing that the victim was born on the February 18, 2006. There is no dispute as to the age of the complainant and I hold that it was satisfactorily proved.

32On the element of penetration, section 2 of the Sexual Offences Act defines penetration as:“The partial or complete insertion of the genital organs of a person into the genital organs of another person.”

33In cases of defilement, the court will rely mainly on the evidence of the complainant which must be corroborated by medical evidence…” (See Dominic Kibet Mwareng v Republic (2013) eKLR.

34In this case, the victim clearly recounted in court how the Appellant removed her clothes then proceeded to remove his clothes and put his thing in hers. Having assessed the evidence on record, the victim vividly asserted that the said act of penetration was committed by the Appellant. It is trite and obvious that penetration can be proved by the evidence of the victim alone as provided for by Section 124 of the Evidence Act, that:“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”

35This position was succinctly held by the Court of Appeal in Williamson Sowa MbwangavRepublic (2016) eKLR, where it stated that:“The import of the proviso to section 124 of the Evidence Act is that the trial court can convict an accused facing a charge of defilement solely on the evidence of the victim, if for reasons to be recorded, the court is satisfied that the victim is telling the truth.”

36Having carefully analysed the evidence on record and the P3 Form produced, I am satisfied that the victim was indeed penetrated.

37On identification, where it’s based on Recognition, that is where the witness knew the accused, this has been held to be more reliable than identification of a stranger. The court of Appeal in Francis Muchiri Joseph v Republic (2014) eKLR held that:“In Lesarau v R, 1988 KLR 783, this court emphasized that where identification is based on recognition by reason of long acquaintance, there is no better mode of identification than by name”.

38In the instant case, the victim informed the court she had been living with the appellant and her sister and she went ahead to narrate the events of that fateful day. She had ample time with the Appellant to well support the evidence of recognition beyond reasonable doubt.

39As matters stand, all essential element of the offence in the main count were proved beyond reasonable doubt.

40From the lower court’s record, it is not clear that any part of the Appellant’s defence was not weighed. There is no evidence that the trial court took into account unnecessary factor or acted on wrong principles of the law in order to reach the preferred conviction and sentence.

41Considering the facts outlined above, the circumstances of the case is that the appellant acted inhumanely when he took advantage of a young child who was living with her. He did not demonstrate remorse for his actions. The appellant deserved a sentence that demonstrate the seriousness of the offence committed.

42Having said this, I find no reason to interfere with both the conviction and sentence of the trial court. The appeal is therefore dismissed for want of merit.

DATED, SIGNED AND DELIVERED AT GARSEN THIS 5TH DAY OF MAY, 2022. ....................................S.M. GITHINJIJUDGEIn the Presence of; -1. Mr Orwa for the state2. Appellant in person