[2022] KEHC 2993 (KLR)

Makamu v Director of Public Prosecutions (Criminal Appeal 139 of 2018) [2022] KEHC 2993 (KLR) (18 May 2022) (Judgment)

Neutral citation: [2022] KEHC 2993 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal 139 of 2018

WM Musyoka, J

May 18, 2022

Between

Joseph Makamu

Appellant

and

Director of Public Prosecutions

Respondent

(From original conviction and sentence in Hamisi SRM Criminal No. 10 of 2017, Hon. M.L Nabibya, Senior Resident Magistrate, of 28/2/2018)

Judgment

1. The appellant had been charged at the primary court, of defilement, contrary to section 8(1) (2) of the Sexual Offences Act, No. 3 of 2006, the particulars being that he, on 3rd February 2017 in Hamisi Sub-County, Vihiga County, had intentionally caused his penis to penetrate the vagina of AM, a child aged ten years.

2. He denied the charge and a trial was conducted. The prosecution called five witnesses. PW1 was the child victim. She explained how a man grabbed her, and handed her over to the appellant, who took her to a bedroom and defiled her. She said that she knew the appellant prior to the incident. PW2 was the mother of PW1. She noticed that PW1 was walking with difficulty, and PW1 told her that she had been defiled by the appellant. She informed the brother of the appellant of the incident. PW3 was a sister of PW1. She was sent out to look for PW1 on the material day, and she saw her coming out of the house of the appellant, pulling her bag and crying. PW4 was the clinical officer who examined PW1, five days after the incident. He noted a bruise on the lower part of her vagina. PW5 was the investigating officer. He gave details of what he did after the report of defilement was made.

3. The appellant was put on his defence. He gave an unsworn statement. His statement turned largely on how he was arrested, and accused of and charged with defilement. He said he was framed.

4. After reviewing the evidence placed before it, the trial court convicted the appellant of the charge preferred against him, and sentenced him to life imprisonment.

5. He was aggrieved by the conviction and sentence, hence he filed the instant appeal. He filed two sets of petitions of appeal. The first was filed on 8th September 2018, dated 6th February ,2018, wherein he alleges that he had pleaded not guilty, the age of the victim was not ascertained, there was no proof of penetration, the case was no proved beyond reasonable doubt and his defence statement was not considered. The second petition was filed herein on 31st January 2020, by his Advocate, Mr. Khayumbi, dated 28th January 2020. It is averred in it that the case was not proved beyond doubt, the defence was not taken into account, the sentence imposed was harsh, the mitigation was ignored, the evidence presented by the victim and the medical evidence did not support the charge, evidence was contradictory, the trial court relied on extraneous matters to convict, the findings of the court were against the weight of the evidence on record, burden of proof was shifted to the appellant, and the decision was not justified and was biased.

6. Directions were taken on 25th February 2021, for disposal of the appeal, by way of written submissions.

7. The appellant did file written submissions, on 27th October 2021, undated. He argued on two grounds - one around the evidence and the other on his defence statement. On the evidence, he submitted that there was lack of sufficient evidence upon which to base the conviction. He submitted that the man who allegedly grabbed PW1, and handed her over to him was not produced as a witness. Secondly, the motive of the offence was not proved. Thirdly, the victim did not tell anyone of the ordeal for three days. Fourthly, evidence was tampered with, for the clothes of the victim were washed by PW2. Fifthly, PW2 alleged to have had bought the P3 form, after she paid Kshs. 1,000. 00 for it. On his defence, he submitted that the same was not considered.

8. On the evidence, I will start by stating that in defilement cases there are only two principal factors for the trial court to establish. One, the age of the victim, for the offence is committed on a human being whose age is below eighteen. Two, the fact of penetration of his or her genital organs. I have looked at the record, and noted that the trial court did consider the two factors, and made findings on them. On the age of PW1, the court found that the victim was a minor. The charge put her age at ten years. She said she was thirteen years old when she testified on oath. Her mother said she was ten years old, and produced her birth certificate, which indicated her date of birth as 12th April 2006, making her ten years and ten months as at 3rd February 2017. The P3 form placed on record put her age at ten, and so did the treatment notes in the booklet presented as an exhibit. Clearly, her age was proved to be ten years, going to eleven. On penetration, there is medical evidence showing that she had a bruise on her vaginal area. The court found that that injury was constant with sexual assault, and the history given.

9. The appellant attacks the evidence on penetration. It is true that the victim went to hospital four or five days after the assault, and most of the evidence had disappeared by then. It is also true that she had been cleaned and her clothes washed by then. However, that, of itself, does not completely destroy the evidence required to establish the offence charged. There is case law to the effect that a sexual offence need not be founded only on medical or scientific evidence. It can be founded on other evidence, including evidence that is circumstantial. PW1 reported that she had been defiled, to her mother PW2, her mother noted that she had difficulty walking. PW4, the clinical officer, found residual evidence of an injury in the genital area of the ten year old, which suggested sexual assault, consistent with the history that she had given. I am satisfied, from the said material, that the trial court was not in error when it found that there was penetration of PW1.

10. Was that penetration by the appellant? PW1 stated so, and gave a fairly straight forward account of what transpired. She knew the appellant prior to that, for he was a neighbour, and she and others used to visit him. The events also happened during daytime, so the question of her being mistaken with respect to his identity did not arise. PW3 saw her leaving the house of the appellant in distress. I have gone through the testimony of PW1, paying attention to the confrontation between her and the appellant at cross-examination, and I note that the appellant did not shake her testimony. The trial court was, therefore, justified in believing her story, that that penetration was by the penis of the appellant.

11. The appellant made the case that the stranger, who allegedly grabbed PW1 and handed her over to him, was not identified, nor presented in court as a witness. The answer to this should be that the prosecution is not obliged to call all the witnesses who were in one way or other involved in matter. In some cases, such as this, some of the eyewitnesses may not have been identified by the victim or even other eyewitnesses, and, therefore, the State has no way of getting them to come to court to testify. In other cases, they may be just uncooperative, for one reason or other. It cannot be, therefore, that the State is obliged to call every single person who is placed at the scene of crime, for it may be impossible to get some of those persons to testify. This being the case, position is that the state is required to call such number of witnesses as are sufficient to prove its case, and inability to call some crucial witnesses should not be fatal, for as long as there is sufficient evidence to support the charge, from the testimonies of those that the State manages to procure. That position is stated in section 143 of the Evidence Act, Cap 80, Laws of Kenya, and it has been restated and repeated in many cases. In Keter vs. Republic [2007] 1 EA 135, Donald Majiwa Achilwa and 2 others vs. Republic [2009] eKLR (Bosire, Waki and Onyango Otieno JJA) and Republic vs. George Onyango Anyang & another[2016[ eKLR (JA Makau J).

12. On his defence not being considered, I will start by stating that the trial court did consider that defence, and eventually dismissed it. This is what the trial court said on the defence, in the judgment:“... Although accused said in defence that he was away, he didn’t give a clear picture of where he was on the day of incident so that the evidence placing him at the said scene can be doubted. He didn’t given particulars of the reasons why he thought the case could be a frame up.”

13. Secondly, the defence statement was unsworn. It is trite that an unsworn defence statement is of little value, and cannot displace concrete evidence given by prosecution witnesses on oath. In criminal trials evidence ought to be taken on oath. The Criminal Procedure Code, Cap 75, Laws of Kenya, gives guidelines on the taking of evidence from witnesses in criminal trials. Section 151 requires that evidence be taken in criminal matters on oath, and imposes a bar to unsworn evidence. The provision states as follows:“Every witness in a criminal cause or matter shall be examined upon oath, and the court before which any witness shall appear shall have full power and authority to administer the usual oath.”

14. It was said, in Amber May vs. Republic[1979] eKLR (Law, Miller & Potter JJA), that an unsworn statement was strictly not evidence and the rules of evidence could not be applied to it. It was said to be of no probative value, but could be considered in relation to the whole of the evidence. Its potential was said to be persuasive, rather than evidential, and, for it to be of any value, it must be supported by the other evidence recorded in the case. In Odongo v Republic [1983] KLR 301 (Madan, Kneller JJA & Chesoni Ag JA), it was said that the unsworn statement of an accused person was not evidence.

15. On the question of the charges being tramped up or framed against the appellant, I note that he did not address the same at all in his defence, other than merely saying that it was a frame up. He did not explain why he thought it was a frame-up. He did not give details or particulars of how he related to the family of PW1 and PW2, which would have brought out some basis for the court to consider the probability of a frame up. Without such evidence, there would have been no basis at all for the court to find and hold that the charges were tramped up.

16. Overall, I am persuaded that the prosecution did establish a fairly watertight case of defilement of PW1 by the appellant, and the findings and conclusions the trial court cannot be faulted in any way. Consequently, it is my finding and holding that the appeal before me lacks merit, and I hereby dismiss the same.

17. An issue arose about the sentence being excessive. The sentences under the section 8 of the Sexual Offence Act are mandatory. PW1 was aged ten years and ten months, when the offence was committed on her. Under section 8(2), the penalty for the offence, where the victim is a child of eleven years and below, is mandatory life imprisonment. That is the penalty that the trial court imposed. The sentence was within the law. It was held, in Francis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others (Amicus Curiae[2021] (Koome CJ&P, Mwilu DCJ&VP, Ibrahim, Wanjala, Ndung’u & Lenaola SSJJ), that neither the trial nor the appellate court has any discretion to impose sentences other than the mandatory sentences prescribed by statute, where lower and upper ceilings are set.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 18THDAY OF MAY, 2022W MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Joseph Makamu, the appellant, in person.Mr. Mwangi, instructed by the Dircetor of Public Porsecutions, for the respondent.