[2017] KEHC 1182 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAPENGURIA

CRIMINAL APPEAL NUMBER 6 OF 2017

(From original conviction and sentence in criminal case number 3 of 2016 of the Principal Magistrate’s Court at Kapenguria)

LANGAT DINYO DOMOKONYANG :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

VERSUS

REPUBLIC:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

JUDGMENT

LANGAT DINYO DOMOKONYANG, the appellant herein, was charged in the lower court with the main count 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 this offence are that on the 26th day of August, 2016, at Chepkondol Sub-Location, in Seker Location of Pokot Central Sub-County, within West Pokot County, the appellant intentionally and unlawfully did cause his penis to penetrate the vagina of C. K. a child aged 6 years.

In the alternative, the appellant faced a charge of Indecent Act with a child contrary to section 11(1) of the Sexual Offences Act number 3 of 2006. The particulars hereof being that on the 26th day of August 2016 at Chepkondol Sub-Location, in Pokot Central Sub-County, within West Pokot County, the appellant intentionally and unlawfully caused his penis to touch the vagina of C.K, a child aged 6 years.

The prosecution case is that on 26. 8.2016, PW-1 in this case was admitted in hospital with a young child. She left her 4 other children at home in [particulars withheld], alone. That day at night the complainant in this case, who is one of the four children who were left at home, was asleep with other siblings. Someone knocked on the house door and then opened. He got to where she was. They had not fallen asleep and the lamp was still on. She recognized the intruder as he was a regular visitor at their home. When he got to her he did what she described as bad manners. She said he did it where she pointed to in court, of which is her private parts area. The complainant was aged then 6 years. She cried in pain and her elder brother namely A, who was aged then 9 years, rescued her by hitting the appellant with a stick and urging him to stop what he was doing. The appellant then fled. When the mother got back home, she was told by A what happened to the complainant. She reported the matter at Marich Police Station, to PW-3. She had with her blood stained clothes which the complainant was allegedly wearing. She was issued with a P-3 form. She went to Kones Hospital and was referred to Sigor Sub-County Hospital. PW-4 examined her and found that she had lacerations on the genital region, hymen was not intact, discharge was noted and a conclusion was drawn of confirmed defilement. PRC form had been filled on 27. 8.2016 and reveals that complainant had lacerations in the genital area and incontinence of urine and stool. The appellant was also examined and his P-3 filled. Where examined he was normal. No abnormality was detected.

The appellant was arrested by Kenya Police Reservists and taken to Marich Police Station where he was charged.

When he was placed on his defense he gave a brief sworn statement in which he stated that he lives in [particulars withheld] and is a herder. He alleged he was falsely accused and denied the offence. The trial court evaluated the evidence, found the offence in the main count proved by the prosecution beyond reasonable doubt, convicted the appellant, and sentenced him to serve life imprisonment.

The appellant dissatisfied with both the conviction and the sentence, appealed to this court on the grounds that:-

1. He pleaded not guilty to the offence.

2. Crucial prosecution witnesses did not offer evidence.

3. He was not accorded enough time to prepare his defense.

4. The evidence did not warrant a conviction.

5. The burden of proof was shifted to him.

6. The case was poorly investigated or not investigated at all.

7. The evidence by prosecution witness was incredible.

The appellant put in written submissions, while the state prosecutor made oral submissions in which she opposed the appeal. I have evaluated the entire evidence, read the judgment of which I have considered, as well as the grounds of appeal and the submissions.

The evidence in the prosecution case is not clear on which offence was actually committed, between the offences of attempted defilement, defilement and sexual assault.

The complainant, the only eye witness called as her elder brother Amutaa was not called as a witness, stated in relation to commission of the offence that:-

“……He then entered the house and came to where I was. He did bad manners to me. He did it here (points at the private parts area.) I was with my brother and sister at the time. My brother helped me, he asked the accused to stop what he was doing. He hit the accused with a stick. I cried in pain. The accused fled.”

“Bad manners” is an English phrase which refers to discourteous manner that ignores acceptable social usage. Rudeness, disrespect, insolence, impertinence, bluntness, impudence, coarseness, discourtesy, abruptness, boorishness, incivility, brusqueness, churlishness, curtness, indelicacy and impoliteness can all fit in definition of bad manners. “Bad manners” is a phrase of which is not carried anywhere in the Sexual Offences Act. Whenever used by a child or anyone else in evidence, it’s the duty of the prosecution to ensure that the user makes it explicit to the court as to its meaning and fits it to the ingredients of the offence as disclosed in the Act. It should not be left to the court to assume or guess as to the meaning of the phrase. Offences in Sexual Offences Act are very technical in nature and whichever one is looked at can fit in the phrase, “bad manners.”

Section 9(1) of Sexual Offences Act states that a person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement. To fully understand the ingredients of this offence, one needs to look at what constitutes defilement as an offence. This is defined under section 8(1) of the Sexual Offences Act. It is where a person commits an act which causes penetration with a child. Where there’s no dispute that the victim is a child, the key word in the offences is “penetration.” This word, under section 2(1)(d) of the Sexual Offences Act,means the partial or complete insertion of the genital organs of a person into the genital organs of another person. It’s still not very clear without knowing what “genital organs” are. Under section 2(1) of the said Act, they include the whole or part of male or female genital organs and for purpose of the Act also anus. The use of the words “genital organs” in the definition of the very same phrase (genital organs), does not help much in knowing what are those other organs referred to, apart from anus. Oxford Concise Dictionary defines “genital” as relating to human or animal reproductive organs. To make it clear they can be internal or external and I am certain the law refers to only the external genital organ which is male penis and a female vagina. For the offence of defilement, it must be established by the prosecution beyond reasonable doubt that a male penis partially or fully penetrated the victim’s vagina and or anus. The complainant said the appellant did to her bad manners and touched at her private part as the place where it was done. She did not however give details of how he did it and with which organ. She never said he undressed or drew out his sexual organ in order to do it.

There is a possibility if penetration is well established, that she could have been penetrated with another body organ like a finger or an object of which would amount to a different offence of which is termed Sexual Assault, under section 5(1) of the Sexual Offences Act.

Sexual Assault is committed by any person who unlawfully:-

a.Penetrates the genital organs of another person with:-

i. Any part of the body of another or that person; or

ii.An object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes.

b. Manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person’s body.

When PW-4 indicates presence of laceration on the genital region, hymen not intact, discharge noted and state this as confirmed defilement, it can’t be correct. It simply shows penetration, a word of which constitutes one of the ingredients in the offence of defilement and of Sexual Assault. The prosecution was therefore obliged beyond the evidence offered to show that the penetration was by male sexual organ. Showing that a male was involved is not enough. Nothing should be left for the court to assume. The court must be certain that the evidence discloses the offence the suspect is charged with.

I also wish to add here that the age of the injuries noted must be brought within the time the offence was allegedly committed, and the absence of hymen is not by itself proof of penetration. In case of Queen –vs- Manuel Vincent Quintanilla, 1999 ABQB 769, a Canadian case of which was relied on by the Court of Appeal in PKW –vs- Republic, HCCRA No. 331 of 2008, it was observed that:-

“Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons. Masturbation, injury, and medical examinations can also rupture the hymen. When a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be natural tearing of the hymen.”

The complainant in her evidence stated her elder brother told the appellant in the process of committing the offence to stop what he was doing, and hit him with a stick, of which made him fled. It’s not clear on whether he had completed commission of the offence before he fled. An offence of attempt could as well have been the one committed, given the circumstances.

The appellant at the onset of the trial had pleaded guilty to the offence twice. I don’t know whether it’s out of that or there’s something else that informed the trial court when it ordered that he be taken for mental check-up. On 16. 9.2016 the county psychiatric gave a report to the court that he had examined him and found he was unfit to stand trial. The court ordered he be taken to Mathari National Hospital for treatment. On 31. 10. 2016 the state prosecutor informed the court that he had a report from Mathari National Hospital showing the suspect was fit to stand trial. The case commenced. The appellant from the record did not well cross examine the witnesses. Given the appellant’s condition, of which was known by the court, and the seriousness of the offence of which carries a mandatory life imprisonment; it is a case where the court should have invoked the provisions of Article 50(2)(h) and assigned an Advocate for the appellant at state expense. This is a case given the circumstances, where substantial injustice was most likely to result in appellant proceeding unrepresented.

Given the foregoing considerations, it’s clear that the offence the appellant was convicted of was not proved by the prosecution beyond reasonable doubt. The appeal is therefore merited and is hereby allowed. The conviction and sentence are quashed. He is set free unless otherwise lawfully held.

Judgment read and signed in the open court in presence of Madam Kiptoo the State prosecutor, and the appellant, this 6th day of December, 2017.

S. M. GITHINJI

JUDGE

6. 12. 2017