[2022] KEHC 11774 (KLR)

NFN v Republic (Criminal Appeal E012 of 2021) [2022] KEHC 11774 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11774 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal E012 of 2021

RN Nyakundi, J

July 21, 2022

Between

NFN

Appellant

and

Republic

Respondent

Judgment

Coram: Hon. Justice R. NyakundiMr Mugun for the state 1The appellant herein was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No 3 of 2006. The particulars of the charge are that on October 9, 2019 at 1630 hours within Elgeyo-Marakwet county, the accused intentionally and unlawfully caused his genital organ, namely penis to penetrate into the genital organs, namely vagina, of HJK, a girl aged 8 years.

2In the alternative he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the charge are that on October 9, 2019 he intentionally and unlawfully touched the vagina of HJK, a girl aged 8 years.

3The appellant plead not guilty to all the charges and the trial proceeded to full hearing. Upon considering all the evidence and the testimony by the witnesses, the trial court found him guilty and sentenced him to 20 years.

4The appellant being dissatisfied with the sentence and conviction instituted the present appeal vide a memorandum of appeal dated February 15, 2021. The appeal is based on the grounds that; The trial magistrate erred in both law and fact by convicting the appellant when the case before him had not been proven beyond reasonable doubt.

The trial magistrate erred in both law and fact by convicting the accused where penetration had not been proved

The trial magistrate erred in both law and fact by convicting and sentencing the accused where the evidence corroborating that the appellant was the perpetrator.

The trial court erred in law and fact by failing to find that the prosecutions’ evidence was full of doubts which doubts ought to have been resolved in favour of the appellant

The trial magistrate erred in law by dismissing the appellant’s defence and shifting the burden to the appellant.

The trial magistrate erred in both law and fact by reaching conclusions based on his own opinions and not evidence

The trial magistrate erred in both law and fact by failing to appreciate that indeed there existed bad blood between the complainant’s mother and the appellant’s sister.

The trial magistrate erred in both law and fact by convicting by failing to make a finding and hold that the prosecution evidence did not support the charges facing the appellant. the patent inconsistence thereof created doubts which ought to have been resolved in favour of the applicant.

The trial magistrate erred in both law by sentencing the appellant to a sentence that was excessive in the circumstances.

Appellant’s Case 5Counsel for the appellant filed submissions on August 26, 2021. Counsel contends that there were inconsistencies in the evidence given by the victim. Further, that there were no other witnesses who corroborated her story and thus the prosecution failed to prove the case to the required standard. The testimony of PW1 was contradictory as she testified that she was defiled on the seat whereas on the statement she wrote that she was carried to the bedroom before being defiled. PW5 was not the officer who arrested the accused and he did not visit the scene therefore his testimony should not have been considered. He cited section 124 of the Evidence Act and the case ofKiilu &anotherv Republic (2005) KLR 174 in support of his submissions.

6Further, counsel contended that the identity of the accused was not proven as only the complainant witnessed him present at the scene of the crime. That the appellant was not served with witness statements and the charge sheet before the trial which was in violation of his right to a fair trial under article 50 of the Constitution. he faulted the court for failing to consider the defence that he had been framed as a result of a dispute with the appellant’s sister.

7According to the appellant, the P3 form produced was not authentic. The form was filled by Kimaiyo Hillary whereas the testimony in court was given by Joseph Chepkenyo thus it was mere hearsay. Section C of the form indicated that the victim had lacerations but did not state where the lacerations came from. The form failed to establish the nexus between the accused and the offence.

8The appellant was of the view that the sentence was excessive and the prosecution had failed to prove their case to the required standard. He asked that the appeal be allowed.

Respondent’s Case 9There are no submissions on record for the respondent.

10The role of this court as the first appellate court has been settled in various precedents. In the case ofOkemo v R (1977) EALR 32 and in the Court of Appeal case of Mark Oiruri Mose v R (2013) eKLR it was held that this court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that.

Issues For Determination 11Upon perusing the appeal, the record and the submissions filed I have identified the following issues for determination;

Whether the prosecution proved its case to the required standard of proof. 12Section 8(1) of the Sexual Offences Act provides;1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

13The key ingredients of the offence of defilement as held in George Opondo Olunga v Republic[2016 ] eKLR are; proof of the age of the complainant,

proof of penetration and

proof that the appellant was the perpetrator of the offence.

Age Of The Complainant 14PW3, the mother of the victim produced her clinic card as proof of the age of the victim. The same was produced as Exh MFI-P1 and indicated that she was born on January 5, 2011. Thus, the age of the victim was 8 years old or thereabout at the time of the offence.

15In Fappyton Mutuku Ngui v Republic [2012] eKLR the court held;... that “conclusive” proof of age in cases under Sexual Offences Act does not necessarily mean certificate. Such formal documents might be necessary in borderline cases, but other modes of proof of age are available and can be used in other cases.

16The trial court did not err in relying on the clinical card as proof of the age of the complainant. I find that the age of the complainant was proven to the required standard.

Penetration 17The appellant’s contention is that penetration was not proven. this is an essential ingredient of the offence and taking into account the severity of the sentence it accompanies it is essential that the standard of proof is met.

18The court of appeal in Mark Oiruri v RepublicCriminal Appeal 295 of 2012 [2013] eKLR addressed the issue of penetration as follows;“…and the effect that the medical examination was carried out on her on 16th November, 2008 five days after the event, and that during that time she must have taken a bath and no spermatozoa could be found. In any event the offence is against penetration of a minor and penetration does not necessarily end in the release of sperms into the victim. Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ…”

19The importance of medical evidence that corroborates the testimony of a single witness can never be understated. Whereas the sexual offences act allows the reliance on the evidence of a single witness, the same is pegged on the intuition or discretion of the magistrate. Sexual offences specifically defilement constitute offences that require physical contact and more often than not the same can be proven scientifically. The P3 form that was produced in court was a bone of contention for the appellant. Section 77 of the evidencegives guidance on the law on production of evidence as follows;1. In criminal proceedings any document purporting to be a report under the hand of a government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence.2. The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it.3. When any report is so used the court may, if it thinks fit, summon the analyst, ballistics expert, document examiner, medical practitioner, or geologist, as the case may be, and examine him as to the subject matter thereof.

20Trial courts have routinely required that such documents as anticipated in section 77 are tendered by persons who are at least familiar with the signatures of the author and who are professionally qualified to answer any questions that may arise in respect of the document. In this regard, PW4 being a clinical officer was well placed to produce the same.

21I now turn my attention back to the issue of penetration. The complainant testified that the appellant put her on the sea and defiled her. In contrast, her witness statement stated that she was carried into the bedroom and the offence took place there. Apart from this inconsistency, the testimony of PW4 in cross examination provided reasonable doubt. He testified that he was not sure if there was penetration. Given all these holes in the prosecution case the only straw for the drowning prosecution to latch onto was the P3 form. The form indicated that there were lacerations on the wall of the vagina but the source of the same is not clear. Further, the report does not confirm if there was penetration. Keeping that in mid, attention is drawn to section 77(3) of the evidence act. The appellant did not have an opportunity to cross examine the clinical officer who conducted the examination therefore the veracity of the P3 firm was not tested to the maximum. PW4 could not provide clarity on penetration as he did not examine the complainant.

22The medical evidence was not conclusive. Whereas it is not a statutory requirement that the form state that there was penetration, the absence of the same coupled with the testimony of PW4 casts aspersions on the prosecution’s case. The clinical officer failed at his role to give expert evidence that would corroborate the evidence of the complainant.

23Having established that there were doubts as to whether there was actual penetration as noted above, this leads to the next question as to whether the appellant ought to be convicted of the alternative charge, which is committing an indecent act with a child. An indecent act is defined in the Sexual Offences Act as follows:“indecent act” means an unlawful intentional act which causes-(a)Any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration.(b)Exposure or display of any pornographic material to any person against his or her will.”

24The penalty for indecent act with a child under section 11(1) of theSexual Offence Act is as follows:“11. (1)Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.”

25Given the testimony of PW4, and the doubts cast as to whether there was penetration, it follows that the prosecution did not prove their case to the required standard of proof. The evidence on record is not consistent enough to convict the appellant of the alternative charge. The burden of proof which is necessary for the prosecution to win a criminal case by sustaining a conviction never shifts as expressly provided for under section 107(1) of the Evidence Act thus: that whoever desires any court to give judgment as to any legal right or liability dependent on the evidence of facts which he asserts must prove that those facts exists. In adherence to this question learned author Fidelis Nwadialo in his book on law of evidence did observe as follows that“The term ‘burden of proof’ is used in two different senses. In the first sense, it means the burden or obligation to establish a case. This is the obligation which lies on a party to persuade the court either by preponderance of evidence, or beyond reasonable doubt that the material facts which constitute his whole case are true, and consequently to have the case established and judgment given in his favour... The other meaning of the expression ‘burden of proof’ is the obligation to adduce evidence on a particular fact or issue. This evidence in some cases, must be sufficient to prove the fact or issue, while in others, all that is required is for it to be enough to justify a finding on that fact or issue, in favour of the party on whom the burden lies. It is called ‘the evidential burden’. This is the sense in which the expression is more generally used .”

26I have reviewed the record and in the process of it I am of the considered opinion vital evidence that goes to the root of the ingredients of the primary and secondary offences of which the appellant was charged with was never tendered by the prosecution beyond reasonable doubt. In Miller v Ministry of Pensions, [1947] 2 All E R 372, Lord Denning stated with regard to the degree of proof beyond reasonable doubt:“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

27Applying the above principles to this appeal my conclusion is the conviction and sentence against the appellant have no legs to stand on, as a consequence the appeal succeeds for an order to issue of releasing the appellant forthwith.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 21 ST DAY OF JULY, 2022. R. NYAKUNDIJUDGEIn the presence of:-Mr Mugun for the stateAppellant -present