[2023] KEHC 19246 (KLR)

Maalim v Republic (Criminal Appeal 25 of 2020) [2023] KEHC 19246 (KLR) (23 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19246 (KLR)

Republic of Kenya

In the High Court at Garissa

Criminal Appeal 25 of 2020

JN Onyiego, J

June 23, 2023

Between

Suleiman Ahmed Maalim

Appellant

and

Republic

Respondent

(Being an appeal from the conviction and sentence delivered by Hon.Wasike SRM Mandera Law Courts on 27th April 2020 in S.O. Case number 27 of 2019)

Judgment

1. The appellant herein was arraigned before Mandera SRMS court on 25th October 2019 charged with the offence of defilement contrary to Section 8(1) as read out with section 8(2) of the Sexual Offences Act No. 3 of 2006. Particulars were that on the 22nd day of October 2019, at around 2045 hours at [particulars withheld] in Mandera North Sub-County Within Mandera county intentionally caused his male genital organ to penetrate the female genital organ of JAM a child aged 12 years old.

2. He was also charged with an alternative count of committing an indecent act with a child contrary to section 11(1) of the sexual offences Act No.3 of 2006. Particulars were that on the 22nd day of October 2019, at around 2045 hours at [particulars withheld] in Mandera North Sub-County Within Mandera county intentionally touched the female genital organ of JAM a child aged 12 years with his male organ.

3. Having returned a plea of not guilty, the matter proceeded to full trial with the prosecution calling one witness the complainant herein. On his defence, the appellant gave sworn testimony denying the charge. Upon close of the case, the court convicted and subsequently sentenced the appellant to 20 years’ imprisonment on 2nd November 2020.

4. Aggrieved by the conviction and sentence, the appellant filed his appeal on 9th September 2020 and amended on 6th December 2021 citing the following grounds; the trial court failed to evaluate the entire prosecution case to find that the complainant’s age was not ascertained; there was no proof of penetration; there was no positive identification; trial court showed open bias when it relied on the complainant’s evidence alone to convict and; failure to consider the appellant’s age which was in transaction age.

5. During the hearing, parties canvassed the appeal through written submissions. On his part, the appellant filed his submissions on 22nd May 2022 thus reiterating his grounds of appeal. It was the appellant’s case that the prosecution did not prove penetration as required under Section 2 of the Sexual Offences Act. That no medical evidence was availed by the prosecution. To support that position, the appellant relied on the holding in the case of FOD v Republic [2014] eKLR. Further reliance was placed in the case of Francis Omuroni v Republic Uganda court of appeal case no.2 of 2000 where it was stated that age can be proved either through medical evidence, evidence by a parent or guardian or common sense.

6. It was further submitted that the prosecution did not prove all the ingredients of the offence. The appellant contended that since the offence attracts a heavy penalty, strict proof of each ingredient of the offence was necessary. To buttress this position, reliance was placed on the holding in the case of Hamisi Bakari & another v Republic [1978]. He went further to state that the prosecution case was not well corroborated as the mother to the complainant who allegedly visited the scene did not testify.

7. The appellant contended that there was no evidence linking him with the offence hence the conviction was flawed. Lastly, the appellant opined that the trial court failed to consider his mitigation and that the sentence was excessive.

8. On his part, Mr. Kihara for the state filed his submissions on 24th March 2022 hence contending that section 124 of the evidence Act thus allow a court trying a sexual offence to rely on the evidence of the complainant alone to convict. Counsel further relied on Section 143 of the evidence Act to express the position that there is no particular number of witnesses required to prove any act.

9. On the aspect of age, counsel urged the court to rely on the holding in the case of Francis Omuroni(supra) where the court held that age of a child victim of an offence can be ascertained medically, by a parent or guardian or common sense. Counsel contended that age was proved by the victim that she was 12years old. On the question of penetration, counsel opined that the same was proved through the testimony of the victim.

10. Regarding identification, counsel submitted that the appellant was well known by the complainant hence positive identification free from error.

11. This being a first appeal, this court is duty bound to re-assess, re-evaluate and re-examine afresh the evidence tendered before the trial court so as to arrive at its independent conclusion or determination bearing in mind that the trial court had the advantage of seeing and or listening to the witnesses so as to be able to assess their general demeanour 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 v 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. ”

12. Brief facts of this case are that on 22nd October 2019, at around 8pm, Pw1 was at the home of her aunt one [particulars withheld] located at Bulla Goro. That she had escorted her aunt to her home while in company of her brother AIA aged 9years old. She told the court that while going back home, they were given a lift by the appellant who was riding a bicycle. That she knew him very well as he used to drop her sister at home quite often using his boda boda.

13. That the appellant took them to Rhamu secondary school inside a bush where he chased away his brother. She stated that the appellant pulled her further into the bush as he covered her mouth not to scream. That she did not scream as the appellant undressed and had sex with her for 10 minutes. She further told the court that while at the scene, her mother and sister suada arrived. That they called her brother who responded and together apprehended the appellant and escorted him to Rhamu police station from where she was taken to Rhamu district hospital where she was treated and a P3 form filled

14. On cross examination, she said that her brother saw the appellant defile her and that he was the one who went to call her mother.

15. In his sworn testimony in defence, the appellant denied the offence claiming that those who saw him defile the complainant never turned up in court.

Analysis and determination 16. I have considered the record of appeal herein, and submissions by both parties. Issues that emerge for determination are that; whether the prosecution had proved its case beyond reasonable doubt by adducing corroborative evidence; whether the age of the child was ascertained; whether there was penetration.

17. There is no doubt that the onerous legal duty to prove a case beyond reasonable doubt lie squarely with the prosecution. It does not shift to the accused person. See Kiilu and another v Republic [2005] eKLR and Peter Wafula Juma and 2 others v Republic [2014] eKLR where the court held that;“As I have already stated, the expression "burden of proof" entails two distinct concepts; "legal burden of proof" and "evidential burden". The two are different, and understanding the distinct application of each is essential. It is also important to understand the position of the law on burden of proof in criminal cases and civil cases; there is a marked difference especially on the legal burden of proof. We shall deduce that difference in the application of the legal burden from the sources I am going to quote below.Legal burden of proof; does it shift? According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:“The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose.The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues”.

18. In the instant case, the appellant is categorically stating that the evidence by the prosecution was not corroborated as crucial witnesses were not call. According to the complainant, she was defiled by the appellant a person she very well knew before as he used to drop her sister at their home using his boda boda. She stated that her younger brother [particulars withheled] witnessed her being defiled. For some unknown reason, [partiulars withheld] was not called as a witness. In her further evidence, she said that her mother and another brother found the appellant at the scene and arrested him. Neither the mother nor the other brother appeared in court to testify. Besides, the investigating officer did not testify to confirm the report of the incident and the physical appearance and condition of the complainant’s clothes e.g blood stains if any or soiled clothes. There was no medical report to corroborate pw1’s evidence.

19. It is trite law that prosecution must at all times make available all crucial witnesses in order to prove a fact. Withholding of critical witnesses in a serious offence such as the one before hand will invariably attract the natural conclusion that their evidence could most likely have been adverse to the prosecution’s case. See Bukenya and Others v Uganda [1972] EA 549 where LuttaAg. Vice Presidentto the court held thus:“The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be averse to the prosecution.”

20. Although the court and the prosecution heavily relied on Section 124 of the Evidence Act which allows reliance of the evidence of a single witness to convict in sexual offences, the same is not a highway to side step the other provisions of the law. Section 124 of the evidence Act was not intended to overlook obvious and binding provisions of the law and to aid in establishing otherwise weak cases or encourage indolence on the prosecution side. There has to be a firm foundation laid as to why the evidence of the complainant alone would suffice.

21. I have no doubt in my mind that in sexual offences, the evidence of a child of tender age does not necessarily require corroboration. See Mohamed v Republic [2006] 2 KLR where the court stated that courts shall no longer be hamstrung by requirements of corroboration when the victim of sexual offence is a child of tender years if satisfied that the child is truthful. However, there is need to test with the greatest care the truthfulness of the evidence of such witness.

22. Whereas the complainant stated in her testimony in chief that her mother and brother found the appellant at the scene and arrested him, on re-examination, she stated that after defilement the appellant ran away and was only arrested after he went for the bike. This is a contradiction in her testimony. The trial court did not give any reason why it found the complainant to be truthful. Hon. Magistrate did not give any indication on his assessment of the general demeanour of the witness. Given the circumstances under which the offence was allegedly committed and the contradictory evidence by the witness herself, I am in agreement with the appellant that there was need for corroboration.

23. Regarding, the aspect of age, it is critical that the same be established so as to determine the appropriate sentence. See Hadson Ali Mwachongo v Republic (2016) eKLR.The appellant was charged with the offence of defilement under section 8(1) of the sexual offences Act which provides that a person who commits an act which causes penetration with a child commits an offence known as defilement. It is incumbent upon the prosecution to prove that the victim was a child at the time the offence was committed and whether there was penetration or partial penetration pursuant to the definition under section 2 of the sexual offences Act.

24. Pw1 said she was told by her mother that she was 12 years. There was no age assessment done, no medical evidence, birth certificate was not produced nor was any parent call to ascertain her age. However, the court did believe in what the victim stated and on its own assessment agreed with her. In Francis Omuroni case above quoted, age of a child can be proved either medically, by parent or guardian, birth certificate, by the victim or common sense. I have no doubt that the court’s physical assessment of the victim and the victims’ own testimony was sufficient to conclude that the victim was a minor at the material time.

25. Regarding penetration, this is a critical component of this appeal. Whereas there is sufficient evidence that the appellant and pw1 interacted that evening which is not challenged, the critical question is whether there was penetration or partial penetration or any act of indecent assault. As stated earlier, nobody testified in support of the complainant. The medical report was not produced nor did the doctor testify. The investigating officer did not testify nor did the mother or brother who allegedly responded to the call by A ever testify.

26. It is trite law that penetration can be proved either directly or circumstantially as long as such evidence proves the offence beyond reasonable doubt. See the case of Bassita S.C.Criminal Appeal no 35 of 1995 Uganda supreme court. Other than the victim’s evidence which is lacking in corroboration, there is nothing else to establish penetration.

27. Having held as above, I am satisfied that the evidence tendered by the prosecution fell short of the required standard of proof hence the appeal is upheld. Accordingly, the conviction is quashed and the sentence set aside. The appellant shall be set free unless otherwise lawfully held.Right of Appeal 14 days

DATED, DELIVERED AND SIGNED VIRTUALLY THIS 23RD DAY OF JUNE 2023J.N. ONYIEGOJUDGE