[2023] KEHC 26991 (KLR)

Marete v Director of Public Prosecutions (Criminal Appeal E072 of 2023) [2023] KEHC 26991 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26991 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E072 of 2023

TW Cherere, J

December 14, 2023

Between

David Kiogora Marete

Appellant

and

Director Of Public Prosecutions

Respondent

(Being an appeal against judgment, conviction and sentence in Nkubu Criminal S. O No. E011 of 2022 by Hon. E.Ayuka (PM) on 10th May, 2023)

Judgment

Background 1. David Kiogora Marete (Appellant) was charged and convicted for the offence of defilement of contrary to Section 8 (1) as read with 8(3) of the Sexual Offences Act No. 3 of 2006 that was committed on 29th December, 2014 against a 14-year-old girl who was said to be mentally challenged and was sentenced to serve 20 years imprisonment.

2. Appellant has appealed the conviction and sentence on the grounds among others that complainant did not testify and that prosecution case was not proved.

Analysis and determination 3. This being a first Appeal, this Court has a duty to evaluate the evidence, analyze it afresh and draw its own conclusion, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify as did the trial Court, and give due allowance for that (See Okeno vs. Republic [1972] E.A.32).

4. I have considered the appeal in the light of written submissions by the Appellant and oral submission made on behalf of the DPP. The elements constituting the offence of defilement are proof of penetration, the age of the minor and the identity of the assailant. (See C.W.K v Republic [2015] eKLR).

5. It is trite that the age of a minor is a critical component of a defilement charge and that it is an element which must be proved by the prosecution beyond reasonable doubt. In Kaingu Kasomo vs. Republic Criminal Appeal No. 504 of 2010 the Court of Appeal stated as follows:“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.

6. Complainant’s age was proved by way of a birth notification which reveals that she was born on 18th February, 2000 and was 14 years when the offence was allegedly committed.

7. Section 2 of the Act defines penetration to entail: -“partial or complete insertion of the genital organs of a person into the genital organs of another person; "

8. The P3 form revealed that complainant’s hymen was broken and the vulva was hyperemic when she was examined on 27th April, 2022 and the trial court’s finding the injuries proved penetration was therefore well founded.

Appellant’s culpability 9. Complainant could not testify because as demonstrated by the P3 form and her mother’s evidence, she was mentally challenged. PW1, the complainant’s mother testified on behalf of the complainant who was said to be mentally challenged. Article 50 (7) of Constitution provides that a Court may allow an intermediary to assist a complainant or an accused person to communicate with the Court in the interests of justice. Section 31 of the Sexual Offences Act defines a vulnerable witness and Section 31 (4) (b) provides for protection of vulnerable witnesses including by way of directing that the witness shall give evidence through an intermediary. The case of M M vs Republic (2014) eKLR provides the procedure of conducting proceedings through an intermediary and the trial court correctly permitted the complainant’s mother to testify on behalf of the complainant who was mentally challenged.

10. Complainant’s mother stated that she was informed that Appellant had been found in a banana plantation defiling the complainant. The person who informed her that he/she had witnessed the incident was neither named nor called as a witness and the trial court’s finding that there was evidence that Appellant was found in the act by passersby was therefore against the weight of evidence.

11. Appellant denied the offence and stated that he was framed by persons that stole his tea leaves and beat him up.

12. From the evidence on record, it is apparent that Appellant was convicted and sentenced on the basis of hearsay evidence.

13. Section 143 of Evidence Act (Cap 80) Laws of Kenya provides that “No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”

14. In Donald Majiwa Achilwa and 2 other v R (2009) eKLR the Court stated:“The law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses’ evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact……..”

15. In Keter v Republic [2007] 1 EA 135 the court held inter alia:“The prosecution is not obliged to call a superfluity of witnesses but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.”

16. In the instant case, the evidence adduced barely establishes the prosecution case, and the fact of the prosecution withholding witness who allegedly caught Appellant in the act leads to the inference that had that witness been called, his/her evidence might have tended to be adverse to the prosecution case. (See Bukenya & Others v. Uganda [1972] EA 549). In this case, I find basis for raising such an adverse inference.

17. Before I conclude, I wish to reiterate that the in a criminal trial, the accused person enjoys a presumption of innocence because the burden of proving the charges is on the prosecution, and to do so beyond any reasonable doubt. Secondly in an adversarial system the purpose of evidentiary rules is to assist the court in establishing the truth and in the process provide protection to the accused in respect to his right to a fair trial. As they say, the prosecution must present a watertight case that meets the threshold of beyond reasonable doubt in order to obtain a conviction. (See Richard Munene v Republic [2018] eKLR).

18. That Appellant absconded after he was released on bond could in my considered view not be substituted as prove of his guilty as was inferred by the trial court and by entering into the arena of the case and making an inference that was not supported by evidence, the trial magistrate defied the fundamental principle that ours is an adversarial system where courts decide only those matters that have been properly laid out in evidence.

19. Consequently, and for the reasons set out hereinabove, I find that the appeal has merit. I accordingly find that the conviction and sentence imposed on Appellant were unsafe. Consequently, the conviction is quashed and sentence set aside. Unless otherwise lawfully held, it is hereby ordered that Appellant shall be set at liberty forthwith.

DELIVERED AT MERU THIS 14TH DAY OF DECEMBER 2023WAMAE. T. W. CHEREREJUDGE