[2022] KEHC 10907 (KLR)

Lukasa v Republic (Criminal Appeal 130 of 2019) [2022] KEHC 10907 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10907 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal 130 of 2019

RN Nyakundi, J

May 19, 2022

Between

Francis Lukasa

Appellant

and

Republic

Respondent

Judgment

Introduction/Background 1. The appellant Francis Lukasa, was charged with the offence of attempted defilement contrary to Section 9(1) (2) of the Sexual Offences Act No 3 of 2006 vide Sexual Offence Case No. 77 of 2018.

2. The particulars of the charge were that on the 1st of July 2018 at Mugen Sub location within Nandi County, intentionally and unlawfully attempted to cause his penis to penetrate the vagina of WA a female minor complainant aged 12 years. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11()1 of the Sexual Offences Act.

3. He pleaded not guilty to the charges and the case proceeded for hearing where the prosecution called 5 witnesses while the appellant relied on his own defence.

4. The complainant (PW1) gave unsworn testimony and told court that on 1/7/2018 on a Sunday at 5pm she had gone to the river then the accused who was seated in trees and she knew him as a neighbor as Francis called her and she thought he wanted to send her. That on going to him he told her to sit down and he slept on her. PW1 testified that the appellant removed her clothes and when she wanted to scream, he covered her mouth. PW1 further testified that the appellant made her lie down facing up, removed her panty and he pulled her dress towards the neck and then he removed his trouser and his inner panty. She further testified that he then started doing bad manners to her and touched her vagina where she urinates from. Her exact words were that ‘he took his thing for urinating and put where she urinates 3 times’ and PW1 felt pain and cried. That he then told her to stand up and put on her clothes, gave her Kshs 100 and told her not to report to her mother.

5. PW 1 noted that she did not tell the mother. That on 4/7/18 her sister Sharon saw PW1 eating sweets and mandazi and she reported to her mother in the evening. That then her mother asked where PW1 got the money from is when she told the mother what had happened and what Francis did and how he gave her the money. Her mother took her into the bedroom and checked her vagina but found nothing but told neighbors. Afterwards, PW1 was taken to the police station and then to hospital and testified that this was the first time the accused or any other person had done this to her.

6. PA (PW2) the mother of PW1 said that PW1 was born in 2006 per clinic card which shows she was born on 1:9/3/2016. She testified that on 4/7/18 at 5pm she was told by her child called S aged 7 years that PW1 had been buying mandazi and sweets and does not come home for lunch. That in the evening PW2 questioned PW1 about the money she uses to buy the mandazi. That said that PW1 was hesitant to tell her where she got the money from but after being assured that she wouldn’t be beaten, PW1 told her mother PW2 told her what had transpired. She reiterated to the mother what she informed court in her testimony. PW2 said she took PW1 into a room and removed her panty and checked her vagina. That she did not see anything. That she went to report to police at Koitabut patrol base and then she took her to Serem health center. She also testified that Franco was a close neighbor and had not differed with him. That the accused was arrested on 4th at Serem.

7. WA (PW3) said that on 4/7/18 at 5pm he was in the farm when PW2 his wife came and told him that there was an issue at home. He went home and, on the way, saw PW1 at a neighbor being questioned and he went there and listened and also questioned her. That PW1 said that a person called Franco who was a neighbor took her to a bush near the river and removed her clothes and slept on her That he gave her Kshs.100/= and told her not to report. That PW2 went and reported at Koitabut. That the accused was not at home but on the next day PW3's son who was boda boda rider saw the accused running away and then the accused was arrested at the center and taken to police where he recorded his statement.

8. Dennis Odhiambo Aloo (PW4) a Clinical Officer based at Serem health center testified that on 5/7/18 PW1 came with police officers and mother and was alleged that she was sexually assaulted on 1/7/18 by known person around 5pm. He noted that a medical examination was done that showed her labia minora and labia majora had no bruises nor obvious bruises on her hymen. Further, he noted that PW1 hymen was intact but there was no active bleeding or physical bruise and no visible vaginal discharge. He however noted that the examination was done 4 days after the alleged incidence. He noted that he found no evidence of defilement but the defilement was about to be achieved based on what PW1 told him that the appellant had touched her genitalia using his male organ.

9. PC Henry Lintari of Kobujoi was the current investigating officer who took over the file from PC Faith who was transferred. He testified that at time of the report he was with said PC Faith at the report office. He noted that the complainant said she was defiled on 1/7/18. Complainant was issued P3 and faith escorted her to Serem Health center for treatment. That the accused was brought by members of the public and it was said he was running away while at Serem market. He testified that he went with the complainant to scene and saw it was beside the road in trees and a person at the scene can't be seen by those passing. It was his testimony further that as per evidence on police file, the accused was about to defile PW1 who was 12 years old according to the clinic card brought that showed she was born on 19/3/2006 and as of July 2016 she was 12 yes old. Finally, he confirmed that the appellant and the girl were neighbors and she said she knew him well.

10. When the accused was placed on defense, he opted to give unsworn statement in defense and not to call witnesses. In his defense the accused said he recalls the charges and what witnesses said in court. He denied the charges noting that the same were lies fabricated to harm him. He further testified that the evidence of witnesses are lies and argued as to how PW2 could leave one child in the house and take another to hospital.

11. After full hearing, the court on the 23rd of July 2019 found him guilty on the main charge of attempted defilement and sentenced him to life imprisonment.

12. Being dissatisfied with the conviction and sentence above, the appellant through petition of appeal filed on the 2nd of August 2019 preferred the instant appeal citing 5 grounds of appeal namely:a.That the case was fabricated against himb.That the grudge herein was not consideredc.That the medical evidence was staind.That his evidence was ignored by the trial courte.That the prosecution evidence was inconsistent and contradictory.

13. However, through an amended grounds of appeal files on the 9th of September 2021, the appellant narrowed the same to 4 namely:a.That the learned trial magistrate erred in law and facts by procuring life imprisonment wrongfully instead of not less than 10 years as law requires.b.That the learned trial magistrate erred in law and facts by failing to use word intentionally and unlawfully so charge sheet was defective.c.That the learned trial magistrate erred in law and facts by failing to scrutinize prosecution and defence evidence to come up to correct weighing scaled.That the learned trial magistrate failed to consider appellant’s mitigation.

14. The appeal was canvassed through written submissions. Parties have filed their respective submissions.

Appellant’s Submissions 15. It was submitted by the appellant that had the learned trial magistrate subjected the evidence to an exhaustive examination and scrutiny, he would have found that there were doubts and gaps in the prosecution case. It was his submission that the medical evidence did not prove the ingredients of defilement hence did not prove the offence of attempted defilement. It was contended that since there was no investigation carried out the case suffered from malignant malady of proof.

16. Furthermore, he submitted that from the medical evidence, the charge was at variance with the evidence hence the conviction was unsafe.

17. On ground one of his appeal, the appellant submitted that he should be let go since he did not commit the crime. His submissions were that if he indeed had sex hunger, he would have satisfied himself to the fullest and not just attempt to penetrate. He further noted that PW2, mother to the complainant testified that she did not see anything on the vagina of the complainant/victim PW1 after she informed her that she had been defiled by the appellant.

18. On ground two, the appellant submitted that by not using the word unlawful, it appears that the charge sheet was defective in substance and form.

19. On the third ground of appeal, the appellant submitted that the doctors report clearly indicates that PW1 did not suffer any bruises on the vagina, that the genitalia minora and majora had no bruises and therefore the child was normal. He further noted that no exhibit was adduced to convict him and that PW1 lied and he ought therefore to be set free. His argument seems to be that no evidence was adduced to show penetration. He also relied on PW2’s testimony that she checked PW1 and found nothing on her vagina. He also relied on evidence of P3 form stating that if indeed PW1 was 12 years old, then he should have been sentenced to 15-20 years and not life imprisonment.

20. Finally, on the last ground, he submitted that the trial court did not consider that he was remorseful despite noting that the alleged offence never took place and pleaded with court to set him free.

Respondent’s Submissions 21. The state submitted that the conviction was proper since the age of the complainant was proved, the overt act was proved and that there was positive identification of the accused by both the victim and the victim’s mother.

22. As regards the issue of defective charge, the state admitted that the word ‘unlawfully’ was not captured in the particulars of the charge sheet but argued the same is curable and not fatal pursuant to Section 382 of the Criminal Procedure Code. In this regard, the state relied in the Court of Appeal case in JMA v Republic [2009] eKLR and submitted that the appellant was not prejudiced by the omission and that the defect did not at all occasion a failure of justice.

23. Finally, on sentence, the state was of the view that the decision of the magistrate to sentence the accused to life was within the parameters defined by Section 9(2) of the SOA which sets minimum and not maximum. They thus urged court to affirm the decision.

Determination 24. This is a first appellate court. As expected, I have analysed and evaluated afresh all the evidence adduced before the lower court and have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. See Okeno v Republic [1972] EA 32 where the Court of Appeal set out the duties of a first appellate court 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 v 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 v Sunday Post [1958] EA 424. ”

25. Similarly, the duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya v Republic [1957] EA 336 is as follows: -“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”

26. It was therefore appreciated by the Court of Appeal in Kiilu & another v Republic [2005]1 KLR 174, that: 1. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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.

2. 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 findings and 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.

27. I have duly considered the evidence, grounds of appeal and the submissions by parties. The issue I find falling for determination is whether the case against the appellant was proved beyond reasonable doubt. In other words, were the ingredients of the offence of attempted defilement proved?

28. In this regard, it is instructive to reproduce Section 9(1) and 9(2) of the Sexual offence Act which provide that: -“9(1) A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.(2)A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years”

29. There are several decided cases on this subject. In the case of Benson Musumbi v Republic [2019] eKLR the court in setting out the ingredients of the offence held that:“21. The prosecution in an offence of attempted defilement must prove the other ingredients of the offence of defilement except penetration; it must prove the age of the complainant, positive identification of the assailant, and then prove steps taken by the assailant to execute the defilement which did not succeed. Attempted defilement is as if it were a failed defilement, because there was no penetration.”

30. The same was reiterated in John Gatheru Wanyoike v Republic [2019] eKLR where the court held that:“It is clear that the elements of the offence of attempted defilement are similar to those of defilement save that there was no penetration. The prosecution must prove that the child was a minor, that there was an act to cause penetration, which was not successful, and that there was positive identification of the accused defiler.”

31. Thus, in determining this Appeal, the court has to establish the followinga)Whether the age of the complainant was proved.b)Whether there was an act to cause penetration, which was not successful.c)Whether the appellant was positivity identified by the minor as her assailant.

Whether the age of the complainant was proved. 32. It is the prosecution’s case that the PW1 was aged 12 years at the time of the incident. PW1 confirmed that she is indeed 12 years old but testified that she did not know when she was born. However, PW2, the mother, confirmed that the victim/complainant was her 8th born and was born in 2006. She produced a copy of PW1’s clinic card marked exhibit-1 that shows that she was born on the 19th of March 2006. She was therefore aged 12 years at the time of incident. In my view therefore, the prosecution proved the same. In any case, there is no dispute as to her age and even if no birth certificate was produced, all the prosecution needed to show was that she was below the age of 18 years old.

33. I am guided by the authority in Charles Nega v Republic Criminal Appeal No 38 of 2015 [2016] eKLR where Mrima J stated that: -“I however wish to further state that from the wording of Section 9 of the Sexual Offences Act (and unlike in the offences of defilement and rape where the exact age of the victim must be proved bearing the weight it has in sentencing), in an attempted defilement charge the prosecution only has to tender evidence that the victim was below the age of eighteen years and not necessarily the specific age. Needless to say if the specific age is availed to a trial court it equally has a bearing in sentencing upon conviction.”

34. In addition, in Daniel Ombasa Omwoyo v Republic [2016] eKLR the court observed that“On the issue of age of Complainant, my reading of Section 9(1) and (2) of the Sexual Offences Act show that age is not a factor for an offence under this Section other than the requirement that the victim of the offence be a child. To my mind, the only requirement of age is that the victim be under 18 years this being the definition of a child under the Kenyan Law.”

35. My finding is that the age of PW1 was proved and she was a minor.

Whether there was an act to cause penetration, which was not successful. 36. As stated in the case of Benson Musumbi v Republic [2019] eKLR“In order to prove an attempt to commit an offence, the prosecution must prove the mens rea which is the intention and the actus reus which constitute the overt act which is geared to the execution of the intention. The actus reus must be more than mere preparation to commit the act as there is a difference between mere preparation to commit an offence and attempting to commit an offence.”

37. This was reiterated in Daniel Simiyu Wanyonyi v Republic [2019] eKLR where Riechi J held that“This Court when dealing with an appeal from a conviction of attempted defilement In Bungoma Hc. Cri. Appeal No. 176 of 2016 stated; when a court of law is faced with any charge on an attempted offence, care has to be taken to ensure that the attempt, as opposed to mere acts of preparation, is proved since however strong the evidence may be if it only relates to actions in preparation to commit a certain crime, that cannot justify a conviction on an attempted charge. In the circumstance or clarity purposes, the evidence must be led which goes beyond the preparatory stages and right to the doorstep of possible commission of the offence. It ought to be demonstrated that the accused had committed the last act to the actual commission of the specific offence attempted. Likewise the intention to commit the crime must also be proved.

38. Relying in the decision in GOO v Republic [2019] eKLR, where the court was clear on seeking interpretation of terms from the relevant statute in order to determine if a crime was committed, I must make reference to Section 388 of the Penal Code defines “attempt” as: -388 (1)(1)When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.(2)It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.(3)It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

39. Flowing from the above and relying on the same case GOO (supra), Section 388(1) above brings out the two main ingredients of an attempt offence. There is the intention (mens rea) and the execution of the intention (actus reus). The prosecution must among others prove the steps taken by the accused to execute the defilement which did not succeed.

40. In David Aketch Ochieng v Republic [2015] eKLR Makau J observed as follows on attempted defilement:“The appellant was charged and convicted with an attempted defilement contrary to Section 9 (1) of Sexual Offences Act No. 3 of 2006. What is attempted defilement? It can safely be stated to be the unsuccessful defilement. For a successful prosecution of an offence of attempted defilement, the prosecution must adduce sufficient evidence to the required standard to prove an attempted penetration. This may in my view include bruises or lacerations from complainant’s vagina and/or bruises or lacerations of culprits genital organ and finding male discharge such as semen or spermatozoa outside the complainant’s vagina or innerwear without there being penetration. There was absence of penetration or evidence linking the culprit with the offence of attempted defilement.”

41. Similarly, in Daniel Ombasa Omwoyo (supra) the court observed as follows: -“In the instant case, can the encounter between the appellant and the complainant be defined as attempted defilement? I do not think so. I say so because from the evidence adduced by the complainant stated that the appellant merely tried to remove her clothes, she screamed and members of the public came to her rescue. The mere action of attempting to remove clothes by the appellant in my humble view does not qualify to be attempted defilement and neither does the and neither does the same even qualify to be deemed as indecent assault as the complainant, who was the only eye witness in this case did not state in her testimony that the complainant touched her breasts or buttocks as he attempted to remove her clothes. The complainant was categorical that other than attempting to remove her clothes, the appellant did not do anything else to her. She did not say how far the attempt to remove the clothes went.”

42. Same was adopted by Majanja J in John Mokua Atandi v Republic [2018] eKLR.

43. In the present case, PW1 testified that the appellant touched her vagina and removed her panty before removing his panty also and inserting his penis three times into her vagina. She also testified that as a result, she felt pain and cried out. However, her mother testified that 3 days later when PW1 informed her of what happened, she examined her daughter’s vagina and noted that she didn’t see anything. In addition, the medical report/treatment booklet (PEXH2) and P3 form (PEXH3) by the clinical officer PW4 indicates that after examination, he found no physical injuries on the victim’s vagina and that there were no obvious bruises on her hymen. He however noted that her hymen was not intact but testified that there was no visible vaginal discharge, physical abuse or active bleeding. He further testified that her genitalia minora and major had no bruises. Finally, it was his testimony that he found no evidence of defilement.

44. From the evidence it is unclear whether the appellant attempted to defile the complainant which was confirmed by the medical records and in the absence of any other evidence to show there was attempted defilement, I have no option but to find that there was no attempted penetration.

45. Having found that there was no attempted penetration I find no need of determining issue no. c which would be an exercise in futility. The end result is that the prosecution failed to prove the ingredient of attempted defilement.

46. Consequently, I find that the conviction is unsafe. I therefore allow the appeal, quash the conviction and set aside the sentence. The appellant is to be released forthwith unless lawfully held under a lawful warrant.

47. Orders accordingly.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 19THDAY OF MAY, 2022. R. NYAKUNDIJUDGEIn the presence of:Mr. Mark Mugun for the State