[2022] KEHC 11985 (KLR)

Limoli v Republic (Criminal Appeal 53 of 2020) [2022] KEHC 11985 (KLR) (Crim) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11985 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal 53 of 2020

LN Mutende, J

May 12, 2022

Between

Philip Limoli

Appellant

and

Republic

Respondent

((Being an Appeal arising from the original conviction in Sexual Offence Case No. 55 of 2018 at Chief Magistrates Court Kibera by Hon. Stephen Jalong’o – (PM) on 6th December 2019))

Judgment

1. Philip Limoli, the appellant, was charged with the offence of defilement of a child contrary to section 8 (1) as read with section 8(2) of the Sexual Offences Act No 3 of 2006. Particulars of the offence were that on an unknown day of January 2013, in Njiru Sub-County within Nairobi County, intentionally caused his penis to penetrate the genital organ namely vagina of BO a child aged 12 years.

2. In the alternative, the appellant faced the charge of committing an Indecent Act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006. Particulars of the offence being that on an unknown day of January 2013, in Njiru Sub-county within Nairobi County, intentionally and unlawfully touched the buttock/breast/anus/vagina of BO a child aged 12 years with his penis.

3. Having been taken through full trial, he was found guilty, convicted for defilement and sentenced to serve fifteen (15) years imprisonment.

4. Aggrieved, he appeals against the conviction and sentence on the following grounds; as amended.a.That, the learned trial Magistrate erred in law and fact by failing to find that the elements of the offence of defilement were not proved beyond reasonable doubt as required by the law.b.That, the learned trial Magistrate erred in law and fact by subjecting the appellant to a trial that was procedurally unfair, by curtaining his constitutional rights under articles, 25,27,50(2)(p) as read with article 50(2)(q) of the Constitution of Kenya and section 333(2) of the CPC thus prejudicing him in the entire trial process.c.That, the learned trial Magistrate erred in law and fact by failing to note that the prosecution case was not proved as the court relied on inconsistent and contradictory medical evidence that, was produced contrary to provisions of section 77 of the Evidence Act creating reasonable doubts in the case thus the guilty verdict unsafe.d.That, the learned trial Magistrate erred in law and fact by failing to find that the crucial and credible witnesses were not procured.e.That, the learned trial Magistrate erred in law and fact by failing to find that the accused had constitutional right to be taken before a court of law within (24) hours. This contravened the provisions in article 49(1)(f) of Kenya Constitution that states an arrested person has a right(f)to be brought before a court as soon as reasonable possible, not later than-(i)24 -hours after being arrested; or(ii)if the 24 hours end outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day;f.That, the learned trial Magistrate erred in law and fact by failing to find that prosecution witnesses were not credible and more-over, not worth of belief.g.That, the learned trial Magistrate erred in law and fact by failing to resolve the contradictions and inconsistences in the appellants favour.h.That, the learned trial Magistrate erred when he failed to note the mother to alleged victim received hearsay evidence from neighbours who did not record statements. The mother also had not recorded her statement since the appellant’s arrest on October 27, 2014 up to 17th day of June, 2018 when she first recorded her statements, which was totally wrong and hence came to a wrong decision.i.That, the learned trial Magistrate erred in law and fact by failing to find that there was a grudge and the reason the reason why the appellant was implicated with the present offence.j.That, the learned trial Magistrate erred in fact and law when he failed to properly evaluate the evidence on record and relied on insufficient, uncorroborated and incredible evidence and came to the wrong decision that the appellant had defiled the alleged minor.k.That, the learned trial Magistrate erred in law by failing to note that the burden and standard of proof by the prosecution was not discharged and thus the prosecution case was not proved beyond reasonable doubt as provided for under the law.l.Finally the appellant will demonstrate that though the trial court exercised its discretion in sentencing the accused person, the same was excessive in light of the recent developments on matter of sentencing in regard to offences of similarly nature like the instant case. That this honourable court has appellate jurisdiction and a duty to evaluate the whole evidence and come up with its independent conclusion.

5. The prosecution’s case was that during the month of January 2013, the appellant dragged the complainant, a neighbour’s child into his house and forced her to have coitus with him. He continued having sexual intercourse with her but asked her to keep it secret. However, a neighbour known as Rose learnt of the relationship between the appellant and complainant and informed PW3 EAO, the complainant’s mother about it. As a result, she reported the matter to the police who commenced investigations. The complainant was taken to the Medicins Sans Frontiers Clinic Mathare for examination where she was examined and found to have old tears on her hymen. The accused person was arrested by members of public and taken to the police station where he was re-arrested and charged.

6. Upon being placed on his defence, the appellant who opted to make an unsworn statement stated that he had a love affair with PW3 who worked at a pub for a long time and had a daughter who lived with her grandmother at Korogocho. That one day she went to his house and found another lady whereby she left without uttering a word. At some unspecified day he found her talking to their one and only neighbour Rose. When he greeted them only Rose answered. Later on Rose informed him that PW3 threatened to do something to him. On October 27, 2014, he returned home at 5. 00pm to find PW3 with her four (4) sisters and they were drunk. One of them stabbed him with a knife on the back. Some of them who were armed with stones followed him as he ran. Members of the public called police officers who went to the scene and it was alleged that he had defiled the complainant. He was taken into police custody and subsequently arraigned in court.

7. The trial court considered evidence adduced and found that the complainant was a child; evidence adduced of penetration was not rebutted and the fact of identification of the assailant was overwhelming.

8. The appeal was canvassed through written submissions. The appellant urged that the trial magistrate should have directed his mind to the question of corroboration regardless of whether there was consent or proper identification. That had a DNA test been carried out it would have clarified the possible doubts in the case. That the resultant conviction was based on hearsay evidence and the fact of a broken hymen was not sufficient to prove the case.

9. That the appellant denied having committed the offences and gave an alibi defence and the witness who gave information to the mother of the complainant having not testified is evidence that she would have given evidence that was adverse to the prosecution case. The appellant faulted the court for relying on contradictory and inconsistent evidence.

10. The respondent opposed the appeal. It was submitted that there was proof of penetration of the minor as the hymen was broken and had tears, evidence that was not challenged by the appellant; A copy of a birth certificate proved the age of the complainant who was twelve years at the time of the incident and that identification of the assailant was positive. On the question of sentence, it was stated that a court would not alter a sentence unless the trial Judge acted on wrong principles or overlooked material factors as stated in the case of Ogolla s/o Owuor Vs Republic (1954) EACA 270.

11. I have considered rival submissions filed herein and a myriad of authorities cited by the appellant. This being a first appeal, I do remind myself of the duty to re-evaluate, re-assess and re-analyze what transpired at trial and to determine what conclusions were reached bearing in mind the fact of having not had the opportunity to see or hear witnesses who testified. This was well articulated in the case of Okeno Vs Republic (1972) EA 32 where the court stated as follows:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M Ruwala Vs R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs Sunday Post [1958] EA 424. ”

12. The court has been faulted for failing to find that elements of the offence of defilement were not proved beyond reasonable doubt.

13. Section 8(1) of the sexual offences Act provides thus:A person who commits an act which causes penetration with a child is guiltyof an offence termed defilement.

14. Ingredients of the offence of defilement were also summed up in the case of Charles Wamukoya Karani Vs Republic, criminal Appeal No 72 of 2013 as follows:“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”

15. In the case ofFrancis Omuroni vs Uganda, Criminal Appeal No 2 of 2000 the court set out how age of minor complainant may be proved. It stated thus:“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence, apart from medical evidence, age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense”

16. In the instant case PW3 was the mother of the complainant. She testified that the complainant was born on July 18, 2002 and adduced in evidence a birth certificate issued in her respect. The prosecution proved beyond reasonable doubt that at the time of the allegation the complainant was a minor of an apparent age of twelve (12) years.

17. On the question whether there was penetration, section 2 of the Sexual Offences Act defines penetration thus;The partial or complete insertion of the genital organs of a person into the genital organs of another person

18. At the outset the complainant was taken to a clinic where she was examined by a clinical officer. The significant thing noted was that the complainant had a hymen with multiple old tears at 3 and 9 o’clock. Subsequently a P3 form was filled where it was ascertained that the hymen was not intact.

19. As correctly argued by the appellant, it has been stated that the fact of a missing hymen these may not be proof of penetration.In the case cited of P K W vs Republic, (2012) eKLR it was stated 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 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 ride, bicycle riding and gymnastics, there can also be natural tearing of the hymen.”

20. The complainant stated that the penetration into her body orifice occurred severally in the year 2013 and 2014. The question of penetration having not been raised in the defence, the complainant should be believed when she argues that the hymen was broken as a result of engaging in coitus.

21. On the question of identification of the assailant, it is argued that the appellant was the perpetrator of the act that caused penetration of the complainant’s genetalia. It is however denied by the appellant who argues that the allegations arose because he disagreed with the mother of the complainant because of love that turned sour. When the complainant testified, it was not suggested to her that there was a disagreement between the appellant and her mother following intimate issues. Similarly, when PW3 testified the allegation of having been the appellant’s lover did not arise therefore bringing up the allegation at the defence stage was an afterthought.

22. The appellant argues that his alibi defence was disregarded. Raising an alibi defence means that the person could not have committed the offence he is being accused of because he was elsewhere at the time it was committed and therefore he could not have been the perpetrator. It has been stated that if this was the case, he should have brought it up at the earliest opportunity to enable the prosecution witnesses to respond to the allegation.

23. An intense look at the appellant’s defence, does not suggest that the appellant was not present during the period the complainant was being molested.

24. The court has been faulted for not finding that a crucial witness, Rose was not called to testify. The alleged Rose was mentioned by both the prosecution and defence. She is the one who allegedly saw the complainant leaving the house of the appellant and informed her mother; and, she is the one who allegedly told the appellant that PW3 “threatened to do something to him” If the court were to reach the conclusion that her evidence would have been adverse then it would apply to both the apellant and the case of the prosecution.

25. This being the case the evidence to be relied on regarding identification remains that of the complainant. In the case of Kassim Vs Republic (2006) eKLR the court of Appeal stated that:“…..the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence”

26. Oral evidence given by the complainant identifying the appellant as the perpetrator was not challenged.

27. The appellant raised the issue of DNA having not been conducted to prove the case. Such forensic analysis may not be necessary to prove a case of defilement as long as there is sufficient evidence adduced.

28. The appellant complains that the trial court relied on medical evidence produced pursuant to section 77 of the Evidence Act that was contradictory. The alluded to provision of the law permits production of a report by an expert witness, a medical practitioner inclusive, to prove facts of which the opinion is expressed. The report by the clinical officer was adduced in evidence by a colleague who worked with her and was conversant with her handwriting. No objection was raised at the point of production of the document.

29. It is urged that the appellant was not produced in court as required by article 49(1)(f) of the Constitution that provides thus:f.To be brought before a court as soon as reasonably possible, but not later than twenty-four hours after being arrested; orii)If the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day.The appellant was arraigned on 3/04/2018. The date of arrest on the charge sheet has an alteration it is not possible to tell when exactly the appellant was arrested. In the case of Julius Kamau Mbugua Vs Republic (2010) eKLR it was stated that:“The alleged unlawful detention does not exonerate the appellant from the serious crime he is alleged to have committed. The breach could logically give rise to a civil remedy – money compensation as stipulated in section 72 (6). That is the appropriate remedy which the appellant should have sought in a different forum."

30. If in deed the appellant was incarcerated for a period outside the stipulated time, his rights were breached therefore, he would seek compensation as it was a civil wrong.

31. The appellant also complains that the evidence was full of contradictions. In the submissions of the appellant he states that “the prosecutions case is riddled with material contradictions, discrepancies and inconsistences. It is not possible to analyze all of them”. Then he proceeds to argue that a crucial witness, Rose was not availed and that the charge sheet indicates he was arrested on 28/1/2014 while the investigation officer said that he was arrested on 27/10/2014. In the case ofTwehangane Alfred vs Uganda Crim Appl No 139 of 2001 (2003) UGCA the Court of Appeal stated that:“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”This was a minor discrepancy that was inconsequential to the prosecution’s case.

32. From the foregoing I find the prosecution having proved the case to the required standard and I affirm the conviction.

33. On the question of the sentence meted out, section 8(2)(3) of the Sexual Offences Act provide thus:(2)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.(3)The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence

34. The complainant was a child aged twelve years. I do take judicial notice of the fact that following the decision of Muruatetu(2017) eKLR courts did exercise discretion at a time when the appellant was convicted and the fact of having been in remand custody for one and a half years. Therefore, there was no misdirection on the part of trial court.

35. The upshot of the above is that the appeal fails and is accordingly dismissed.

36. It is so ordered

DATED, SIGNED AND DELIVERED VIRTUALLYAT NAIROBI THIS 12TH DAY OF MAY, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:Ms. Gikui for ODPPAppellantCourt Assistant – Mutai