[2022] KEHC 11899 (KLR)

Nyakuto v Republic (Criminal Appeal 46 of 2019) [2022] KEHC 11899 (KLR) (16 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11899 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal 46 of 2019

SN Mutuku, J

May 16, 2022

Between

Juma Ramadhan Nyakuto

Appellant

and

Republic

Respondent

(Being an appeal from the judgment delivered by Hon. Ogombe L.D against conviction and sentence in Criminal Case No. S. O 8 of 2017 on 30th April, 2014)

Judgment

Memorandum of Appeal 1. The appellant, Juma Ramadhan Nyakuto, was charged with Defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act. The particulars are that on diverse dates between February 5, 2017 and March 1, 2017 at [particulars withheld] area in Ongata Rongai he intentionally and unlawfully caused his penis to penetrate into the anus of IN a child aged 12 years.

2. The appellant faced an alternative charge of indecent act contrary to section 11(1) of the Act of the Sexual Offences Act that on diverse dates between February 5, 2017 and March 1, 2017 at [particulars withheld] area in Ongata Rongai he intentionally and unlawfully caused his penis to penetrate into the anus of IN a child aged 12 years.

3. He was tried and found guilty in the main charge and sentenced to served 20 years imprisonment. He is aggrieved by the conviction and the sentence and has filed the instant appeal through his memorandum of appeal which was later amended. The amended grounds of appeal are that :-i.The Hon. Court gravely erred in points of law and fact by mis-interpreting the scientific evidence of PW3 and PW4 contrary to section 48 of the Evidence Act which the same led to a breach of legal law of burden and standard of proof contrary section 111(2) (c) of the Evidence Act.ii.The subordinate court below has faulted in law by disregarding vital features of the case hence appreciating scrutiny which was not free from care and caution hence failure to consider the evidence objectively and dispassionately which gravely violates section 107 of the Evidence Act.iii.The Honourable court below gravely erred in law and fact in convicting the appellant on a grossly defective charge sheet contrary to section 134 and 214 (1) of the Criminal Procedure Code.iv.The learned magistrate erred in law and fact in stepping into the arena of the litigants and making presumptions in respect of the complainant’s testimony to the detriment of the appellant.v.The trial court gravely erred in law and fact by convicting the appellant on wrong stipulated procedure of plea taking as per Article 47(4) and Article 50(1) & (2) of the Constitutionof Kenya 2010 .vi.The honourable trial court gravely erred in law and fact by convicting the appellant on a flawed trial in vitiating his constitutional right to information as provided in Article 49(a) (ii) (b) (f) (i) and 50(2) (g) (h) (i) & (k) of the Constitutionof Kenya 2010 .vii.The investigations were shoddy contrary to section 48 of the Evidence Act.viii.The honourable trial court magistrate gravely violated the stipulation in section 169(i) & 212 of the Criminal Procedure Code, Cap 75 Laws of Kenya by rejecting my defence statement which was plausible even without rebuttal.

Submissions 4. The appeal was canvassed by way of written submissions. Both parties have filed their submissions.

5. In his arguments, the appellant on Ground One of his appeal submitted that the magistrate relied on evidence that was contradictory and uncorroborated; that PW1 could not have undergone the incident unnoticed by the other child (M) who was in the house at the time is raising eyebrows; that had the incident occurred it would have caused commotion and would have attracted the neighbors; that the medical report, P3, PRC & GVRC forms submitted did not corroborate PW1’s evidence.

6. On the issue of penetration the appellant argued that the P3 form indicated there was no discharge, lacerations and bruises yet the end results becomes a complete defilement; that the clinical officer (Peter Ngatia Waruhiu) commented on the PRC and GVRC forms that there was actually defilement a fact that Dr Peter Wanyama (Original maker of the medical examination Report at NWH) never mentioned; that the trial court did not address whether the purported anal tenderness was an abnormality or was as a result of the alleged offence.

7. On the 2nd ground he submitted that the prosecution wholly relied on the evidence of PW1 as well as the medical evidence contained in the medical report to establish penetration when PW3 stated that he was not the examining doctor but was however familiar with the handwriting of the document’s maker; that it therefore raises questions as to the genuineness of the said medical examination report therefore making it inadmissible in evidence as per section 77 of the evidence Act. That the only medical report produced by an expert was the P3 produced by PW4 which indicated that PW1’s anus was found to be normal upon examination thereby raising inconsistencies as to which medical report to rely on.

8. On ground 3 he submitted that the charge sheet was grossly defective. He submitted that the evidence adduced does not agree with the charges; that the charge sheet shows he was arraigned in court on March 6, 2017 while the court’s proceedings show February 9, 2017.

9. On ground 4 the appellant submitted that the uncertified copy of the complainant’s birth certificate was produced into evidence contrary to section 68 of the evidence Act and was therefore not properly admitted in evidence.

10. On grounds 5 and 6 he submitted that he was not informed about defending and challenging the evidence; that he didn’t know the magnitude of the offence he was charged with and that his right to information was infringed contrary to Article 50(2) (g) (h) (j) and (k) of the Constitution.

11. On the ground 7 he submitted that the investigations were poorly done; that the defilement was only speculative and could only be considered as circumstantial; that there was need for corroborative evidence to scientifically, exhaustively and conclusively connect the appellant to the alleged offence and that the medical evidence connecting the appellant with the offence was not conclusive.

12. On the ground 8 submitted that the conviction was unjustifiable as he ought to have been given the benefit of doubt as the credibility of the evidence of the complainant was in question.

13. The appeal was opposed by the learned prosecution counsel who submitted that PW1 testified that on February 5, 2017 and on March 1, 2017 the appellant used his penis to penetrate his anus; that PW1’s evidence was corroborated by Pw 3 and medical evidence in the p3 form, PRC and GVRC which confirmed that his anus was tender and consistent with anal penetration.

14. On the issue of the age of the complainant, it was submitted that PW5 produced a birth certificate confirming that PW1 was born on November 30, 2005; that he was therefore a minor of 12 years of age.

15. On the issue of identification of the appellant, it was submitted that the complainant knew the appellant well as he was living with him and that the incident also happened during the day and the complainant could identify the appellant.

16. It was submitted that the prosecution has proved the offence of defilement beyond reasonable doubt. The state asked the court to dismiss the appeal, uphold the conviction and affirm the sentence.

Analysis and Determination 17. This is the first appeal. It is the duty of this court to read, evaluate and analyse all the evidence tendered in the lower court and make own independent conclusion. In doing so, I remind myself that I did not observe the witnesses as they testified and I will give allowance to that.

18. The grounds of appeal relied on by the Appellant are jumbled up and his submissions unclear. My careful reading of the same shows that the appellant’s ground of appeal can be summarized to five. I understand him to be raising the following issues:a.Contradictory and uncorroborated evidence leading to lack of proof of the case beyond reasonable doubt.b.Defective charge sheet.c.Wrong procedure in plea taking.d.Poor investigations.e.Failure to consider appellant’s defence.

19. On contradictory and uncorroborated evidence, I have read the entire record of the lower court. The evidence shows that PW1 was living with the accused and his family in the same house, a one roomed house. PW1 was very clear that on February 5, 2017 the appellant told him to lick his “thing” (in reference to the penis” after which he asked the complainant to bend over. The appellant is said to have taken some oil, rubbed it on his “thing” which he proceeded to put in PW1’s anus. This caused PW1 pain.

20. Evidence further shows that on March 1, 2017 the appellant again defiled PW1 by inserting his penis in a bottle of oil and penetrating PW1’s anus. After the second incident the complainant called his mother and told her what had happened. PW1’s mother called PW2 and informed her what had happened. PW2 reported the matter to the police. They were referred to hospital where PW1 was examined.

21. I noted that PW1 was examined twice. At first he was taken to Ngong Sub-County Hospital on March 9, 2017 and was examined by Dr Caroline Muinde (PW4). The doctor found mild tenderness on the anus with no bruises and lacerations. She concluded that there had been anal penetration. PW1 was also examined at Nairobi Women Hospital where it was found that there was tenderness in the anal area with no bruises or lacerations. The PRC and GRVC forms were produced by Peter Ngatia a Clinical Officer on behalf of Dr Peter Wanyama who had examined PW1 but was unavailable to testify because he had left the employment.

22. I have given this evidence careful consideration. PW1, PW2 and the appellant lived in the same house. They were related. PW1 did not inform PW2 about the sexual assault. PW1 testified that he did not tell PW2 what had happened because the appellant had threatened him not to tell anyone and that if he told anyone, the appellant would chase him away to become a street boy (chokora). In his testimony in court PW1 expressed himself clearly that the appellant told him to lick his “thing” (kitu yake) which he uses to urinate. The second time this happened, they were again alone in the house with the little child. The appellant defiled him. PW1 said he did not scream because the appellant told him to bear it like a man.

23. The trial court considered the evidence and stated as follows:“From the evidence it was clear that the accused was well known to the victim and had easy access to him. He was husband of Violet (PW2) and all three were living together under one roof at the time. The complainant IN (PW1) stated he was defiled twice, 7am and 5am. On both occasions, the victim (PW1) was defiled inside his own home. At 7am, there is sufficient daylight for a victim to see his assailant. In addition to seeing the perpetrator, IN heard his voice. The Accused was at the crime scene on the material days and was the only male adult in the household. The denial that he was not the perpetrator isn’t persuasive and does not cast reasonable doubt on the evidence adduced by the complainant”

24. My careful consideration of the evidence touching on the identity of the perpetrator satisfies me that he was positively identified by PW1. The trial court did not make mistakes in so finding.

25. On the issue of penetration, the complainant was examined twice: at the Ngong Sub-County Hospital and at Nairobi Women Hospital. PW3 testified that though he was not the maker of the PRC form and GVRC he is a qualified doctor and is familiar with the handwriting of his colleague Dr Peter Wanyama who had left employment at the said hospital. That though the court proceedings show that PW3 stated that the victim was seen at the hospital on September 3, 2018 the PRC form is dated March 3, 2017. It is my view that the same was an oversight on the part of PW3. The appellant in his submissions argued that PW3 was not the maker of the medical examination report and therefore whether the same was genuine and properly admitted into evidence. Section 77 of the Evidence Act allows a person other than the one who prepared a report such as the P3 forms in issue to produce it provided the presumption of authenticity is met. The section provides as follows:"77. (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.

26. Once the presumption of authenticity under section 77(2) aforesaid is met the document is admissible. In this case PW3 testified that he was a qualified doctor from Nairobi Women Hospital and was familiar with the handwriting of his colleague. From the Court’s records the accused did not object to him giving evidence.

27. InJoshua Otieno Oguga v RepublicKSM CA Criminal Appeal No 183 of 2009 [2009]eKLR the Court of Appeal considered the same issue and held that:"That in short means that if the appellant wanted the medical report to be produced by a doctor, he had to apply to the court to summon the doctor who prepared the report, otherwise there was nothing wrong in law in the P3 form being produced by PC. Ann Wambui as she did.”

28. On the issue of inconsistency of the dates on the medial evidence adduced. The appellant claims that the P3 form rendered a major inconsistency with the one from Nairobi Women’s Hospital. That the P3 Form indicated that the PW1’s anus was normal. From the evidence adduced the medical evidence from Nairobi Women Hospital is dated March 3, 2017 which examination revealed tenderness in the anal region resulting from anal penetration. The injuries were still fresh as the incident had happened on March 1, 2017. PW 4 testified that she examined PW1 on March 9, 2017. She also stated in her evidence that the examination happened one month and 4 days after the offence. She may have been making reference to the first time defilement happened on February 5, 2017. The P3 form indicated that the injuries suffered by PW1 were mild injuries to the anus. The allegations by the appellant in the submissions that the examination showed normal is incorrect. The part that was indicated “Normal” in the P3 form was under the physical state of and any injuries to genitalia. In my view therefore there was no inconsistency found between the medical evidence in the PRC form and the P3 form.

29. The trial court considered the defence of the appellant. Paragraphs 15 and 17 of the judgment is clear that this was done. It reads as follows:"15. I have also carefully considered the defence that the Accused was having financial problems with Violet (PW2). The same is also no persuasive. I see no reason why IN (PW1) would wrongly implicate him. Clearly PW1 was embarrassed and injured in the ordeal…..17. From the evidence before me, this does not seem like a family out to wrongly frame the accused. Both witnesses appeared genuine. I am satisfied with the evidence.”

30. The trial court considered the evidence of a child in sexual offences under section 124 of the Evidence Act that such evidence can be used to convict where the child is the only witness as long as the court records the reasons for believing such evidence. The trial court also warned itself of the risks involved in relying on the sole evidence of the child on identification.

31. In my own view after careful consideration and analysis of all the evidence, it is clear to me that the appellant was positively identified as the perpetrator and that penetration has been proved by medical evidence from both Ngong Sub-County Hospital and Nairobi Women Hospital. I am aware there is the issue of age raised by the appellant. A copy of a birth certificate was produced in court to prove age of the complainant. He had also testified that he was aged 12 years. I have no reason to doubt the birth certificate and the evidence of PW1 and PW2 on the age of the appellant.

32. I also find no fault with investigations or with the charge sheet. It is properly drawn. The plea was properly taken and was unequivocal.

33. The upshot of this is that this appeal has no merit. On my own consideration and analysis, the prosecution has proved the case against the appellant beyond reasonable doubt. I agree with the trial court in its findings on the guilt of the appellant, conviction and sentence. I therefore find no reason to disturb the findings of the trial court on conviction and sentence.

34. Consequently, this appeal fails. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 16TH MAY 2022. S. N. MUTUKUJUDGE