[2024] KEHC 2220 (KLR)

MOO v Republic (Criminal Appeal E015 of 2023) [2024] KEHC 2220 (KLR) (5 March 2024) (Judgment)

Neutral citation: [2024] KEHC 2220 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Appeal E015 of 2023

KW Kiarie, J

March 5, 2024

Between

MOO

Appellant

and

Republic

Respondent

(From the original conviction and sentence in S.O. case NO.2 of 2021 of the Senior Principal Magistrate’s Court at Kendu Bay by Hon. Celesa A. Okore-Principal Magistrate)

Judgment

1. MOO, the appellant herein, was convicted of the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act No. 3 0f 2006.

2. The particulars of the offence are that on the night of the 22nd day of December 2020 at Rachuonyo North sub-county within Homa Bay County, he intentionally and unlawfully caused his penis to penetrate the vagina of MSA, a child aged seventeen years.

3. The appellant was sentenced to fifteen years’ imprisonment. He was aggrieved and filed this appeal against the sentence. He was in person. He raised grounds of appeal as follows:a.That the trial magistrate erred in the matter of law facts by failing to realize that the appellant was not supplied with all documentary evidence the prosecution relied on, including the investigation diary.b.That PW1 was an incredible and untrustworthy witness whose evidence could not have been relied upon by the to secure a conviction.c.That crucial witnesses were not called to testify to testify.d.That the alleged machete allegedly used to threaten PW1 was not recovered nor brought to court as an exhibit.e.That prosecution evidence was marred with contradictions, inconsistencies, discrepancies and glaring gaps.f.That age as one of the ingredients of the presence offence was not proved beyond a reasonable doubt.g.That my identity as the perpetrator was doubtful.h.That penetration was not proved.i.The medical evidence in P3 from the treatment notes, form, and PRC form did not support the complainant’s contentions.j.That this was a framed-up case against the appellant.k.That PW1’s and PW2’s evidence does not corroborate.l.That PW1, according to PW2, was not found at the alleged defilement; hence, the issue of consent shall PW1’s age be proved to be 18 years.m.That PW1, according to PW2, was not found at the alleged scene or crime; hence, the tests lie to frame up the appellant, who was alleged to be drunk and was not aware of his actions and cannot be lawfully held responsible for his actions.n.That in an offence of defilement, only three ingredients are looked at: penetration, age of the victim and identity of the perpetrator, but not text message.o.No evidence was produced in court from the mobile operator to show that the alleged line which the SMS emerged from belonged to the appellant, and no transcript was produced in court from CIU to show the location and exact place where the complainant was sending this text from at 3. 00 am.p.That the present offence was not proved by medical evidence.q.That the trial magistrate erred in law and fact by shifting the burden of proof to the appellant.r.That the trial magistrate erred in law and facts by dismissing the alibi defence by DW1 and terming it unreliable.s.That the defence by DW1 corroborates DW2 ‘s and exonerates the appellant from the offence alleged.t.DW2 confirms to the Hon. Court that she was with her husband, the appellant, from 6. 30 pm, from 22/12/2020 to 23/12/2020 and slept together throughout the night.u.That it is the prosecution side, to prove its case, erred in relying on the evidence of DW2 (the appellant’s witness) to secure a conviction.v.That broken, torn, or missing hymen is not proof of penetration or defilement.w.That the trial magistrate erred in law and facts by failing to give the benefit of the doubt to the appellant after the prosecution failed to produce all exhibits mentioned by PW1 and PW2, and the appellant was not accorded a fair trial.x.That the investigating officer, PC Kamburi, was not produced in court to be cross-examined by the court and the appellant.y.The trial magistrate failed to note that there was a grudge between the appellant and PW2 (The complainant's mother) and that the department gave rise to the alleged charge.z.That the prosecution case was not proved beyond reasonable doubt as required by law.aa.That the sentence was executed against the law and in total violation of article 25(a) of the constitution, and it lacked a sense of discretion.

4. The state opposed the appeal through Mr. David Ndege, learned counsel, who contended that the appeal lacked any merit.

5. This is a first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court afresh. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs. Republic [1972] EA 32.

6. An offence of defilement is established against an accused person when the prosecution has proved the following ingredients:a.That there was penetration of the complainant’s genitalia;b.That the accused was the perpetrator andc.The age of the victim must be below eighteen years.These are the ingredients the prosecution must prove beyond any reasonable doubt before the trial court.

7. Briefly, the prosecution case was that the appellant and the complainant’s mother had a relationship. After the husband of SAO (PW2), the complainant’s mother, died, the appellant became her “husband”. However, it would appear that this relationship was clandestine, for the appellant’s wife testified that she was unaware of it.

8. On the 22nd day of December 2020, the appellant, building on this relationship with PW2, requested that she allow the complainant and her sister to sleep in his house since he was going to work in Kisumu. She consented but asked the appellant to go with the complainant and leave her sister to assist her. This is what PW1 and PW2 testified to.

9. MSA (PW1) told the court that on their way to Kobala, the appellant bought some alcohol. Upon reaching the appellant’s home, they took supper at his mother’s house. He then asked her to go and sleep in his house for the day he was to travel to Kisumu.

10. While in the house, he gave her some alcohol, but she declined. He directed her to the bedroom, and he remained in the sitting room, taking the alcohol. When he joined her in the bedroom, he took out a machete and ordered her to undress. Due to fear, she complied, and he had sexual intercourse with her several times.

11. In his defence, the appellant contended that he owed the complainant’s mother, Kshs. 60,000. 00, from which he had paid Kshs.20,000,00. He pleaded an alibi and stated that on the material night, he was at Rakwaro with his wife and child. He called his wife DW2, who supported his contention.

12. In her evidence, the complainant testified that she was seventeen years old. A copy of her birth certificate was produced as an exhibit. It indicates that she was born on June 19, 2003. At the time of the incident complained of, she was seventeen years and six months old. For the purposes of section 8 (4) of the Sexual Offences Act, her age was proved to the required standards.

13. The medical evidence was adduced by Arnest Omollo (PW4), a Kendu Bay sub-county Hospital clinical officer. He only testified that he was attached to Kendu Bay sub-county hospital. His evidence was that when the complainant was examined on the 23rd day of December 2020, she had a broken hymen, and epithelial cells were seen. He, therefore, concluded that there was defilement. The Court of Appeal in the case of P. K.W vs Republic [2012] eKLR observed as follows:“15. In their analysis of the evidence on record, the two courts below do not seem to have directed their minds to these details. They appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified?" Is the hymen only ruptured by sexual intercourse?

16. Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina (sic) 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 riding, bicycle riding, and gymnastics, there can also be a natural tearing of the hymen. See the Canadian case of The Queen vs Manuel Vincent Quintanila [1999] AB QB 769. ”There must be some other evidence to support the allegation of defilement.

14. Though the clinical officer did not explain the significance of the presence of epithelial cells in the complainant’s genitalia, I will be guided by the explanation given in Denis Okelo Mateba vs Republic [2015] eKLR.The Doctor, PW5, explained in court that “epithelial cells are cells that are present after injury on a surface. The foreign cells in her fluids were a sign of assault, and they flowed in the fluid after they are removed as a result of injury. They are of the person examined. They fall off from the injured person:” From the preceding evidence, this court is in agreement with the learned trial magistrate that PW1 was sexually assaulted which led to the existence of epithelial cells in the high vaginal swab taken from her.I, therefore, find that the complainant was defiled.

15. The complainant contended that it was the appellant who defiled her. When the only evidence that tends to incriminate an accused person is that of the complainant, the trial court must adhere to the proviso of section 124 of the Evidence Act. It provides:Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.In analysing the evidence on record, I will bear this proviso in mind.

16. Some circumstantial evidence implicates the appellant in the offence. In the case of Republic vs Kipkering arap Koskei & Another 16 EACA 135, the Court of Appeal held:In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.

17. PW2 testified that the appellant requested she allow him to accompany him so that she could be left in the house for security reasons. After conceding, she saw some SMS messages from the appellant’s phone the following morning. The messages were from the complainant, seeking her help, for the appellant had defiled her.

18. In her evidence, PW1 testified that at about 3 a.m., she requested the appellant use his phone's flashlight to go to the toilet. This is when she sent the text messages to her mother. The printout concerning the messages was produced. The messages emanated from the appellant’s phone.

19. The appellant, in his defence, pleaded an alibi. When an accused raises an alibi defence, they do not assume any burden to prove that it is the truth. This was stated in the case of Kiarie vs. Republic [1984] KLR, where the Court of Appeal held:An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable. The Judge had erred in accepting the trial Magistrate’s finding on the alibi because the finding was not supported by any reason.

20. He contended that on the night of the 22nd day of December 2020, he never left his house in Rakwaro at Kobala Centre. Although his wife testified that she was with him throughout the night, she said they were not in Kobala, as the appellant testified. This and the SOS messages emanating from his phone shattered his alibi defence. The learned trial magistrate was justified in dismissing it.

21. I, therefore, find that the prosecution proved beyond reasonable doubt that the appellant defiled the complainant.

22. Section 8 (4) of the Sexual Offences Act provides:A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.The sentence meted out to the appellant was the prescribed under the section.

23. The appeal is, therefore, dismissed for want of merits.

DELIVERED AND SIGNED AT HOMA BAY THIS 5THDAY OF MARCH 2024KIARIE WAWERU KIARIEJUDGE