[2018] KEHC 3718 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL APPEAL NO. 236 OF 2014

NJERU ABDALLA SAIDI..........APPELLANT

VERSUS

REPUBLIC...............................................STATE

(Being an appeal from the Judgment of Honourable H. M. Nyaga Senior Principal Magistrate, delivered on 15th September, 2014 in Molo Chief Magistrate’s Court Criminal Case No. 1741 of 2008)

JUDGMENT

1. The Appellant, Njeru Abdalla Saidi, was presented before the Nakuru Chief Magistrate’s Court charged with the offence of defilement of a girl under eleven years contrary to section 8(2) as read together with section 8(2) of the Sexual Offences Act. It was alleged in the charge sheet that, on 13/10/2008, in Molo District, the Appellant had carnal knowledge of EC, a female juvenile under the age of eleven years.

2. An alternative count charged the Appellant with the offence of indecent assault of a child contrary to section 11 of the Sexual Offences Act. The place, time, date and particulars of the victim are the same as in the principal count save that the allegations were that the Appellant unlawfully and indecently assaulted EC by touching her private parts namely vagina.

3. After the Appellant denied the charges, the case proceeded to full trial in which the Prosecution called eleven witnesses and the Appellant gave an unsworn statement. A guilty verdict ensued. The Appellant was then sentenced to life imprisonment.

4. My duty as the first appellate Court is to re-evaluate and reconsider all the evidence adduced during the hearing afresh and come to my own conclusions about all the elements of the crimes charged. In doing so, I am to be guided by two principles. First, I must recall that I must make appropriate allowance for the fact that I did not have a chance to see or hear the witnesses. This means that I must give due deference to the findings of the Trial Court on certain aspects of the case. Second, in re-evaluating and re-considering all the evidence, I must consider the evidence on any issue in its totality and not any piece in isolation. This principle constrains me to reach my own conclusions on the totality of the evidence as opposed to merely using the Trial Court’s findings as a foil to endorse or reject its findings. See Okeno v Republic [1973] E.A. 32; Pandyavs. R(1957) EA 336, Ruwalavs. R(1957) EA 570.

5. The Appellant raised the following grounds of appeal which he expounded in his written submissions:

1. That the learned trial Magistrate erred in law and fact by failing to find that the charge sheet was fatally defective.

2. That the learned trial magistrate erred in law and in fact by failing to appreciate that the age of the complainant was not conclusively proves as required by law

3. That the learned trial magistrate erred in law and in fact by failing to appreciate that the identification of the appellant was not positively done.

4. That the learned trial magistrate erred in law and in fact by failing to find that the Appellant was not subjected to an identification parade yet the witnesses did not recognize the perpetrator of the offence.

5. That the learned trial magistrate erred in law and in fact by failing to find that the prosecution evidence was marred with contradictions and inconsistencies and as such could not sustain a safe conviction.

6. The State opposed the appeal. Mr. Chigiti, Prosecution Counsel, submitted orally in opposition.

7. At the trial, the following evidence emerged.

8. The Complainant, EC, testified first. She told the Court that on 13/10/2008, she was in her home chopping vegetables when the Appellant went to the home and told her he wanted to take her to Sirikwa Court. He forcefully held her by the hand and led her to a maize plantation. EC further told the Court that once at the maize plantation, the Appellant forced her to lie down, removed her panties and raped her. Once done, EC further said, the Appellant went away leaving her bleeding from her private parts. On her way home, she met a guard from her school who helped her home.

9. The guard who helped her home was Moses Lotir Lomala. He testified as PW8. He confirmed that on the date and time mentioned by EC he heard some girls calling the name "C" in the forest. He went to find out what was going on. That is when, he said, he met EC who was crawling in pain. She was bleeding from her private parts. On inquiry, EC told him that “Askari wa hema” had done “tabia mbaya” to her. That term referred to the Administration Police guarding the Camp. Mr. Lomala later joined the group of people who were looking for the Appellant and was there when the Appellant came out with a gun and shot in the air to disperse the group.

10. EC’s sister, V C, told the Court that she was home with EC on that day. At around 5:00pm, the Appellant went there and forced them to accompany them to the IDP Camp saying that a girl had been raped. The Appellant, reportedly, beat them with a bamboo stick to force compliance. After walking with them for a while, the let them go and the two girls went back home. Shortly thereafter, V went to the posho mill leaving EC alone at home. EC was not at home when V went back. She went looking for her. That is when, V testified, she saw the Appellant jumping over the fence and fleeing. Shortly thereafter, she met EC and the guard and learnt from EC that the Appellant had raped her. They started screaming to attract attention.

11. One of those who heard the screams was James Macharia Muraya who testified as PW5. He was at [Particulars Withheld] village at the time. He ran to the scene and found a group was gathering. He heard that it was alleged that the Appellant had raped the Complainant. He saw the Appellant come out of his house with a gun and opened fire forcing people to scatter.

12. Stanley Kipkorir Langat, another denizen of Gacharage, was spraying his potatoes when he saw the Appellant walking towards the forest with EC. He later met Charles Mutai who told him that EC had been raped by the Appellant. He also saw EC shortly thereafter and noted that she could not walk due to her injuries. They went in a group to look for the Appellant in the forest. When they did not find him, they went to the Camp to try and locate him. That is when, testified Langat, the Appellant came out blazing with a gun and shot in the air to disperse the crowd. Everyone scampered to safety.

13. Charles Mutai confirmed that he gave the information to Mr. Langat. Earlier on, Mutai told the Court, he had seen the Appellant seated with EC. Mutai’s son recognized the girl as a schoolmate. He and his sons were going to the shamba to lay traps for mice. He later saw the Appellant walking away from the forest. Shortly thereafter, Mutai heard screams and on inquiry, he learnt about the rape. He then joined the group that was searching for the Appellant and witnessed when the Appellant came out blazing with a gun.

14. Mutai’s son also testified as PW3. His name is E K. He corroborated Mutai’s account.

15. The OCS Molo Police Station at the time, Chief Inspector Dalmas Ongeri, received a call from a citizen informing him about a Police Officer who had allegedly raped a girl and was threatening members of the public with a gun. He dispatched his deputy to the scene. Later on, the deputy informed him that he had taken the victim to Molo Hospital. The OCS also called the Administration Police Commander in Molo and informed him what had been alleged about his officer. In any event, the Appellant was taken to the OCS at 4:00am the following night. As part of the investigations, the OCS asked the Appellant to strip to his underpants. He told the Court that he noted blood stains on the Appellant’s underpants. He collected them as part of the evidence. The underpants were later sent to the Government Chemist for analysis.

16. The OCS also testified that he visited the scene and collected the Complainant’s underpants which equally had blood stains. These were also sent to the Government Chemist for analysis.

17. When the Government Chemist, Albert Kathuri Mwaniki, did analysis of the blood stains in the two underpants, he concluded that it was highly probable that the blood stains from both underpants were from the Complainant, EC. This was because EC had blood Group A while the Appellant belongs to blood Group B – yet the stains on both underpants were of blood Group A.

18. There were two final witnesses. Dr. Justus Nondi testified on behalf of Dr. Wainaina who examined the Complainant. He produced the P3 Form filled by Dr. Wainaina who was not available to testify due to a transfer out of the station. The doctor saw tears on EC’s vagina. They were so bad that they had to be surgically repaired. The Post-Rape Form which was also produced by Dr. Nondi showed that EC had excessive bleeding in her perineum. She also had bruised on her vulva and the hymen was broken. The unmistakable conclusion by the doctor was that the Complainant had been defiled.

19. Finally, PC Thomas Kipkwai testified as PW10. He was the investigating officer. He told the Court about visiting the scene and taking the Complainant to the hospital. He also arranged to take the exhibits to the Government Chemist for analysis. He produced the two pairs of underpants as well as the Exhibit Memo Form.

20. Based on this evidence, the Learned Trial Magistrate placed the Appellant on his defence. He gave an unsworn statement in which he denied that he had defiled EC. His story is that it was another Police Officer who must have defiled the Complainant. However, the crowd approached the camp and yet he was the only one left there at the time – forcing him to shoot in the air. He says that he told the Commandant what had happened and the Commandant instructed him to go to Molo Police Station. When he got there, the Appellant told the Court, he was not given a chance to say anything but was put in the cells and later on charged with the present offence.

21. The Learned Trial Magistrate had no hesitation in finding the Appellant guilty. He convicted him of the principal count and sentenced him to life imprisonment as mandated by the Statute.

22. In order to return a guilty verdict, the Court was required to ascertain that the Prosecution proved the three ingredients of the offence of defilement:

a. That the victim was below eleven years old;

b. That there was penetration; and

c. That it was the Appellant who caused the penetration.

23. The Appellant complains that the age of the Appellant was not proved adequately because there were discrepancies: the Complainant stated that she was ten; the OCS claimed she was seven; while the P3 Form indicated that she was eleven. The Appellant believes that these discrepancies are material and should yield an acquittal for him. He is wrong. The ingredient of the defilement as charged in the Appellant’s case was that the child be under the age of eleven. In my view this fact was adequately proved through the oral testimony of the Complainant and the P3 Form. There is no requirement to establish the age of the victim with mathematical precision; it is sufficient that the Court is satisfied that the child is below eleven years old.

24. What about penetration? The Appellant raises no complaints about this. And it is just as well. There was overwhelming evidence of penetration. Indeed, according to the medical evidence contained in the P3 Form and the PRC Form, the penetration was so vicious that the Complainant was bleeding profusely after her vaginal walls suffered massive tears. She required surgical repair of the vagina.

25. However, the Appellant says he was not the perpetrator. To aid his refutation, the Appellant argues that the identification by the Appellant is not error-proof. In particular, he says that there was no evidence of first report describing him as the perpetrator. Secondly, the Appellant complains that there was no identification parade performed to confirm he was indeed the perpetrator.

26. The circumstances of the assault in this case was such that the Appellant was reportedly seen and identified by three other people in addition to the Complainant. This included Stanley Chepkorir Langat; Charles Mutai and E K. All these three people saw the Appellant walking to the forest with the Complainant. Shortly thereafter, these three people heard screams and heard from the Complainant that the Appellant had defiled her in the forest. They also found the Complainant bleeding from her private parts and badly injured in her genitalia. The Complainant was categorical that it was the Appellant who had defiled her. He described the Appellant to the guard, Moses Lotir Lomala, as the “Askari wa Hema”. All the three people who had earlier seen the Appellant walking to with the Complainant to the forest and know him as an Administration Policeman needed no gift of clairvoyance to know that the perpetrator was the Appellant.

27. These circumstances did not necessitate the organization of an identification parade. What is more is the manner of the arrest of the Appellant. Immediately after the Complainant raised the alarm about her defilement ordeal, irate villagers went to the Camp to smoke out the Appellant. They already knew who it was from the accounts of the Complainant; Langat; Mutai and K. It was this process that eventually led to the arrest of the Appellant. It would have been pointless for the Police to arrange for an identification parade in those circumstances.

28. The Accused Person also complains that there were material inconsistencies and contradictions in the Prosecution case which, he argues, raise reasonable doubt about the case. He points out the following as what he sees as material inconsistencies:

a. First, the Appellant says that the Complainant told the Court that he did not know the Appellant yet in her statement she said that she knew he was a Police Officer. I find no discrepancy in these two positions. Clearly, the Complainant meant that she did not the name of her assailant but her testimony and the testimony of Moses Lotir Lomala are clear that she knew the Appellant was an Administration Policeman.

b. Second, the Appellant raises issues related to the colour of the Complainant’s panties: were they red as the Complainant testified in examination-in-chief; Khakish as the Court noted when it was shown to her; or white as the Government Chemist’s Report indicated? Admittedly, this is a discrepancy. However, I believe the discrepancy is not fatal. It is possible that the Complainant, a young child of tender years was not clear about colours or had, due to the trauma of the event, forgotten the colour of the panties she wore that fateful day. As for the difference between Khakish and White, it would probably be a difference accounted by different perceptions of colour by the Learned Trial Magistrate and the Government Analyst. That disparate perception could have been accentuated by the passage of time and the storage conditions of the exhibit.

c. Similarly, the minor discrepancy in the describing the colour of the Appellant’s underpants can be explained by differences in perceptions of colour by two males: the OCS thought it was yellowish; the Government Analyst thought it was greyish.

d. Fourthly, the Appellant says that there was contradiction in the testimony of the Complainant when she stated that C sold chang’aa on behalf of their mother while her sister, V, denied that C was ever involved in the sale of chang’aa. The record bears out this contradictory evidence but it has no bearing whatsoever on the credibility of the witnesses and the charges at hand. It is important to recall that the Learned Trial Magistrate who heard and saw the witnesses concluded that both the Complainant and V were truthful witnesses and he believed their story.

29. As noted by the Uganda Court of Appeal in Twehangane Alfred Vs Uganda, Crim. App. No 139 of 2001 [2003] UGCA, 6it is not every contradiction that warrants rejection of evidence by a Court of law. The Kenyan Court of Appeal has taken the same position – see, for example, Erick Onyango Ondeng’ v Republic [2014]eKLR Criminal Appeal NO. 5 OF 2013. As the Court put it:

With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.

30. Having looked at the trial Court record in its entirety and in context, I have come to the conclusion that the so-called inconsistencies in question in this case are not material at all; they can be ignored as they have no bearing on the veracity of the material evidence tending to demonstrate the guilt of the Appellant. They do not relate to factors verging on the incredulity of the witnesses.

31. Finally, the Appellant complains that the charge sheet was defective because it did not contain the words “unlawfully and intentionally.” Suffice to say that countless authorities have now established that minor defects in the charge sheet are curable under section 382 of the Criminal Procedure Code. Hence, even if the omission of these words is, indeed, the reasoning of the Court of Appeal in JMA vs Republic [2009] KLR 671 would cover this situation.

32. In that case, the High Court had quashed a conviction on the main charge of defilement and found the appellant guilty on the alternative charge because the charge sheet did not contain the words “intentionally and unlawfully” making the main charge fatally defective. On that question, the Court of Appeal held that:

This was a case in which the superior court should have invoked the provisions of Section 382 of the Criminal Procedure Code to cure the irregularity which on the facts and circumstances of this matter was minor.

33. The same applies here. In any event, looking at the wording of the various sub-sections in section 8 of the Sexual Offences Act, I am not persuaded that the words “unlawfully and intentionally” are necessary. The sections are quite clear that any penetration or attempt at penetration on a child, without more is a violation of the act; it is per se, unlawful.

34. In the end, therefore, this Court, after re-considering and re-evaluating all the evidence and the entire trial court record concludes that all the elements of the offence of defilement of a child under the age of eleven years have been proved beyond reasonable doubt. The conviction was safe and free from error and it is hereby affirmed. Since the statute provides for only one sentence for the offence – that of life imprisonment – the appeal against sentence is also not sustainable.

35. The orders that the Court shall give, therefore, are as follows:

a. For the reasons stated above, the appeal is dismissed and the conviction is hereby affirmed.

b. The sentence imposed by the Trial Court of life imprisonment is affirmed.

36. Orders accordingly

Dated and delivered in Nakuru this 4th of October, 2018

………………………..

JOEL NGUGI

JUDGE