[2022] KEHC 10633 (KLR)

Muriuki v Republic (Criminal Appeal 75 of 2018) [2022] KEHC 10633 (KLR) (15 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10633 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Criminal Appeal 75 of 2018

HPG Waweru, J

June 15, 2022

Between

Isaac Kinyua Muriuki

Appellant

and

Republic

Respondent

Judgment

1. The Appellant herein, Isaac Kinyua Muriuki,was convicted after trial of defilement of a child contrary to section 8(1) & (2) of the Sexual Offences Act, 2003. It was alleged that on 05/02/2018 in Nanyuki Town within Laikipia County, he intentionally and unlawfully caused his penis to penetrate the vagina of one BN, a child aged 3 years. On 23/10/2018 he was sentenced to life imprisonment. He has appealed against both conviction and sentence upon the various grounds set out in the amended petition of appeal filed on 23/01/2020. Amongst those grounds are –i)That the ingredients of the offence were not proved beyond reasonable doubt.ii)That the medical evidence tendered was inadmissible in law.iii)That the testimony of the minor complainant was uncorroborated and could not found the conviction.iv)That the evidence tendered by the prosecution was inconsistent and contradictory.v0That the trial court misdirected itself on the provisions of Article 50(7) of the Constitution and section 31 of the Sexual Offences Act regarding testimony through an intermediary; and that therefore the Appellant was prejudiced leading to a miscarriage of justice.vi)That the trial court did not consider the Appellant’s defence.

2. The Appellant was represented by learned counsel in this appeal. I have read and considered his able written submissions filed on 16/02/2022.

3. Learned counsel for the Respondent also filed written submissions, on 15/03/2022. He did not support the conviction upon the following grounds –i)That the trial court failed to comply with the provisions of section 31 of the Sexual Offences Act.ii)That penetration was not proved to the required standard because the medical evidence which could have corroborated the testimony of the intermediary was itself hearsay.iii)There was no evidence from the complainant that it was the Appellant who defiled her.

4. I have read through the record of the trial court in order to evaluate the evidence placed there and arrive at my own conclusions regarding the same. This is my duty as the first appellate court. I have borne in mind however, that I did not see and hear the witnesses testify, and I have given due allowance for this fact.

5. The complainant, a child aged about 3 years, was declared a vulnerable witness on application by the prosecution. The trial court appeared to act under subsection (1) of section 31 of the Sexual Offences Act, though it did not so state in terms. Her mother, PW1, was then appointed her intermediary and allowed to testify on her behalf.

6. Although a parent can be appointed an intermediary of a vulnerable witness in appropriate cases, an intermediary generally ought to be an independent person who possesses certain skills or experience in communicating with such vulnerable witness. In the present case PW1 was a witness in the proceedings in her own right as the alleged defilement had been reported to her, and she had then immediately undressed the child and observed her private parts, and reached certain conclusions upon which she took the child to hospital and later reported the matter to the police. She was thus hardly an appropriate intermediary as it was unlikely that she would impartially convey to the court what the complainant might say. It was therefore difficult to distinguish between her own observations and what she says the complainant told her.

7. There are elaborate measures under section 31 aforesaid to be put in place once a witness has been declared vulnerable, all geared towards enabling the witness to testify usefully through the intermediary. None of them were invoked by the trial court. Because of this failure, it cannot be said with certainty that the testimony of the intermediary is indeed the testimony of the vulnerable complaint and not the intermediary’s; I hold therefore that the Appellant was gravely prejudiced.

8. It is to be noted that under subsection (10) of section 31 a court cannot convict an accused person charged with an offence under the Act solely upon the uncorroborated evidence of an intermediary. The trail court in the present case found corroboration in the medical evidence. However, the medical evidence was in essence hearsay because the clinical officer who filled and signed the medical report (P3) never examined the complainant. He filled the P3 from a Post Rape Care form filled by another medic who had examined the complainant but did not testy. Penetration was thus never proved beyond reasonable doubt.

9. Upon the above two grounds, the Appellant’s conviction is unsafe and cannot be allowed to stand. It is hereby quashed and the sentence imposed set aside. The Appellant shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered.

DATED AND SIGNED AT NANYUKI THIS 15TH DAY OF JUNE 2022H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 16TH DAY OF JUNE 2022