[2022] KEHC 17262 (KLR)

Nyamwea v Republic (Criminal Appeal 25 of 2018) [2022] KEHC 17262 (KLR) (9 November 2022) (Judgment)

Neutral citation: [2022] KEHC 17262 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal 25 of 2018

SN Mutuku, J

November 9, 2022

Between

Hezbon Onyango Nyamwea

Appellant

and

Republic

Respondent

(Being an appeal from the judgement of the Hon. L. Ogombe, Senior Principal Magistrate, delivered on 29/3/2018 at the Chief Magistrate’s Court in Ngong in Criminal Case No. 9 of 2016)

Judgment

1. The Appellant, Hezbon Onyango Nyamwea, was charged in the lower court with two counts of defilement contrary to section 8 (1) as read with section 8(2) of the Sexual Offences Act. (herein referred to as Sexual Offences Act). The particulars are that on diverse dates between 2nd and October 8, 2016 at [Particulars Withheld] area, he intentionally and unlawfully caused his male organs (penis) to penetrate the female genital organ (vagina) of VWM a child aged 8 years and of SM a child aged 7 years old.

2. He was also charged with 2 alternative counts of committing indecent acts with the above-mentioned children contrary to section 11(1) of the Sexual Offences Act. That on diverse dates between 2nd and October 8, 2016 at [Particulars Withheld] area, he intentionally and unlawfully caused his male organs (penis) to penetrate the female genital organ (vagina) of VWM a child aged 8 years and of SM a child aged 7 years old.

3. The Appellant was tried and found guilty of the two main counts of defilement. He was sentenced to life imprisonment in each count. The sentence in the second count was held in abeyance.

4. He is aggrieved by the conviction and the sentence and filed the instant appeal through his Memorandum of appeal of Appeal dated April 9, 2018 in which he has raised the following grounds:i.That the Learned trial magistrate erred in law and misdirected herself when she failed to consider the Appellants defence.ii.That the Learned trial magistrate erred in law and fact and misdirected herself in finding that the Appellant guilty yet the prosecution failed to prove their case beyond reasonable doubt.iii.That the Learned trial magistrate erred and misdirected herself in convicting the appellant without considering the discrepancies in the charge sheet.iv.That the Learned trial magistrate erred in law and in fact in convicting the accused person herein without considering the fact that there is no evidence linking the appellant to the offence.

Submissions 5. The Appeal was canvassed through written submissions. The appellant filed his submissions on March 17, 2022. On the issue of defective charge sheet, he submitted that the dates when the offence occurred vary from the evidence given in court by PW1; that the testimony showed that PW1 took the minor VWM to the hospital on October 7, 2016 but that she had noticed that the minor was sick a week before and therefore that this meant that the minor was defiled before October 1, 2016.

6. On whether the ingredients of defilement were proved, he argued that the prosecution did not conclusively prove that penetration occurred. He argued that according to the testimony of PW1, the minor told her that she felt ichy and pain while urinating a week before October 7, 2016 when PW1 took the minor to hospital. According to him there is no evidence that the minor told PW1 that she had been defiled. He argued, further, that the minors conflicted on the dates the incident happened, with PW2 stating that the incident happened on Friday, Saturday and Sunday while PW3 stated that it happened on Friday, Saturday and Thursday. He submitted that the above differences in evidence raises the issue of the truthfulness of the evidence relied on.

7. The Appellant raised issues with the discrepancies of the medical evidence. It was his case that the PRC form as regards VWM on what was observed indicated ‘’penovaginal penetration.’’ That the document should have indicated on observation whether there was broken hymen, bruises and lacerations. Secondly, P3 form for SM indicated that the perpetrator was well known to her while that of V W M indicated that the alleged perpetrator was unknown. He submitted that the medical forms such as the PRC forms did not have rubber stamps from the Nairobi Women hospital and that the medical evidence could not be relied on as its authenticity was in question.

8. On uncorroborated evidence, the Appellant argued that the whole of the prosecution case was riddled with explicit inconsistencies and contradictions, the first being the contradictions between the minors on the dates when the defilement occurred as already submitted. He submitted that the minors testified that the perpetrator was known to them while the medical reports indicated that the perpetrator was unknown. That the testimony of PW4 and that of PW7 contradicts on the number of times the incident occurred; that while PW4 stated that it occurred twice, PW7 indicated that it happened thrice the third time being October 9, 2016.

9. He also submitted that the prosecution failed to call crucial witnesses. He submitted that from the evidence of the minors, there was a girl called Josephine but she was not called to testify; that from the evidence of the minors there was an adult girl who was present when they went to the Appellant’s house but the said girl was not called to testify.

10. The Appellant argued that the trial court rejected his defence. He submitted that his conduct displayed conduct of an innocent person as he even accompanied the minors to the hospital; that he explained why he had invited the minors to his house together with other children and that they were celebrating his girlfriend’s birthday.

11. He submitted that the prosecution has failed to prove its case beyond reasonable doubt; that the DNA analysis conducted by PW8 resulted in findings showing there was no link between the accused and the complainant.

12. The Respondent’s submissions are not in the court file. The court record shows that the prosecution took long to file submissions. On July 27, 2022, Mr Mang’are for the Respondent told the court, after numerous applications for extension of time to file submissions, that the Respondent had completed preparing submissions and that he would file them by close of that day. At the time of writing this judgment, there is no record that the Respondent has filed submissions.

Analysis and Determination 13. The offence of defilement is defined under section 8 (1) of the Sexual Offences Act as follows:"A person who commits an act which causes penetration with a child is guilty of an offence termed defilement."

14. Under Section 2 of the Sexual Offences Act, "penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person. The offence of defilement has three (3) key elements that must be proved beyond reasonable doubt: penetration, age of the victim and the identity of the perpetrator.

15. Before I turn to the issue as to whether the prosecution has proved the offence of defilement beyond reasonable doubt, I wish to determine the other issues raised by the Appellant in this appeal. I have considered his argument that the charges were defective because they do not accord with the evidence. In particular, the Appellant is challenging the charges because of the dates on which the alleged defilement took place. The Appellant cited Jason Akumu Yongo v Republic [1983] eKLR where the Court held that:“In our opinion, a charge is defective under section 214(1) of the Criminal Procedure Code where:a)it does not accord with the evidence in committal proceedings because of inaccuracies or deficiencies in the charge or because it charges offences in the charge not disclosed in such evidence or fails to charge an offence which the evidence in the committal proceedings discloses; orb)it does not, for such reasons, accord with the evidence given at the trial; orc)it gives a misdescription of the alleged offence in its particulars."

16. I have considered this issue and the arguments in support of the same. It is true the two minors were not able to pinpoint the dates when they were defiled. Their evidence is that the Appellant defiled them on several occasions. Their respective mothers were also not able to categorically state when defilement took place. However, medical evidence shows that the two minors had genital injuries and bacterial infections. The genital injuries and absence of hymen on both girls is a pointer that they had engaged in sexual activity. I do not agree with the Appellant that the charges he faced in the lower court did not accord with the evidence.

17. Further, I have considered section 382 of the Criminal Procedure Code that provides that:“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission, or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice.”

18. I find that there are no defects in the charges that cannot be cured by the application of the above provision. This ground has no merit and must fail.

19. I have considered the issue raised by the Appellant that the trial court failed to consider his defence. I have read the record of the trial court and specifically the judgment of the trial magistrate. I have noted that paragraph 3 of that judgment discussed the defence of the Appellant. Further, paragraph 6. 1 of the judgment considered, at length, the defence of the Appellant and the trial magistrate concluded by stating that “the defence does not raise reasonable doubt that he (Appellant) committed the offence.”

20. This ground has no merit and must also fail. It is my finding that the trial magistrate considered the defence of the Appellant and found it not worthy and rightly rejected it as untrue.

21. Ground two of the Appeal that “the Learned trial magistrate erred in law and fact and misdirected herself in finding that the Appellant guilty yet the prosecution failed to prove their case beyond reasonable doubt” and ground number four that “the Learned trial magistrate erred in law and in fact in convicting the accused person herein without considering the fact that there is no evidence linking the appellant to the offence” are considered together.

22. Both grounds question the trial court for finding the two charges proved beyond reasonable doubt without supporting evidence. This calls to mind the requirement to prove the elements of the offence of defilement to the required standard.

23. I have considered the evidence tendered in the lower court. PW2 testified that she and PW3 were invited by the Appellant to his house at the “gorofa”. She stated that he took them to the bed and did ‘’tabia mbaya.’’ She explained that “tabia mbaya’’ meant that the appellant ‘put his thing’ inside the place she uses to go for short call (ya kukojoa) and that he did it more than once.

24. PW3, on her part, testified that the Appellant ‘did bad manners’ 3 times; that she had forgotten some days of the week; that she was wearing a trouser, the Appellant undressed her and ‘put his thing inside her’; that at the time she was with PW2; that after this, the Appellant told them to go take a shower.

25. The two minors were examined by the trial magistrate upon which he formed the opinion that both girls did not understand the nature of an oath but were possessed of sufficient intelligence to testify. They testified without taking oath but the trial magistrate allowed them to be cross-examined by the Appellant. The trial magistrate was impressed by the girls’ demeanor. On my part, sitting on appeal, I have considered the evidence of the two minors, though I did not observe them when giving evidence. I am satisfied that they related what had happened to them quite well and their evidence was tested on cross-examination without being shaken.

26. The evidence of defilement was corroborated by PW5 who testified that after examination of PW2, it was found that her hymen was torn, the vaginal area was inflamed and septic and the outer genitalia was inflamed. The examination of PW3 revealed ulceration/bruises and injuries to her vagina, the hymen was also torn and freshly broken. The testimony of PW5 was that these injuries on both minors were consistent with sexual activity.

27. PW6, a medical officer also confirmed that there was penetration as both minors had torn and/or broken hymens. A P3 form was produced to that effect which indicated evidence of vaginal penetration. It is therefore clear from the above evidence that penetration indeed occurred.

28. I have considered the evidence of the two minors and find that it corroborates each other. In addition, I have considered medical evidence which clearly shows penetration did take place. It is my finding that the act of penetration has been proved beyond reasonable doubt.

29. I have considered the arguments of the Appellant that the medical evidence had discrepancies. I have noted that during the trial before the clinical officer and the medical officer testified, the trial court explained to the Appellant the evidentiary rules and the Appellant stated that he did not object to the production of the evidence by a person who was not the maker of the particular documents. The trial court allowed the witnesses to testify on behalf of their colleagues. The Appellant cannot now claim the witnesses were not the makers of the document as he did not object during trial.

30. The Appellant further raised the issue that the PRC and GVRC forms did not have rubber stumps from the hospital. PW5 explained on cross-examination that sometimes patients forget to take the forms for stamping. In my view I find that the inadequacies on the medical evidence does not have any basis. On this I rely on case of Uganda Court of Appeal in Twehangane Alfred v Uganda- Criminal Appeal No 139 of 2001, [2003] UGCA, 6, where the court noted that it is not every contradiction that warrants rejection of evidence. There the court stated that:“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.”

31. On the second element which is age, I find that the prosecution proved the age of the two minors. PW1 testified that her daughter PW2 was 8 years old. She also had her birth certificate which showed that she was born on April 3, 2008. PW4 testified that her daughter PW3 was aged 7 years and 5 months, having been born on April 28, 2009. She produced an immunization card to that effect. This was corroborated by PW7 who testified that she received an original birth certificate belonging to PW2 and an immunization card belonging to PW3. These documents were produced as Exhibits 3 and 4. It is my finding that the age of the two minors has been proved beyond reasonable doubt.

32. On the third element of identification of the accused, there is evidence of both minors that the Appellant was known to them. They both knew where he lived. They led the mother of PW2 to the home of the Appellant and identified him as the perpetrator. Both girls testified that they had been defiled 3 times and they could clearly see the perpetrator. They had been invited to the Appellant’s house on several occasions and took time there eating. They were able to clearly identify him in court during the trial.

33. I have considered the arguments of the Appellant that the P3 form indicated that one of the minors knew the perpetrator while the other one did not and that the contradictions in the P3 form and the testimonies of the minors created reasonable doubt. As stated earlier and supported by Twehangane Alfred v Uganda- Criminal Appeal No 139 of 2001, [2003], minor contradictions do not necessarily amount to rejection of evidence

34. I have considered the argument by the Appellant that the adult girl mentioned in the evidence of PW2 and PW3 was not called by the prosecution to testify. I find there is sufficient evidence even without the evidence of any witness who may have been omitted. Besides, the proviso to Section 124 of the Evidence states that:“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.”

35. In George Kioji v RNyeri Criminal Appeal No 270 of 2012 (unreported), the Court of Appeal stated as follows in respect of proof of commission of sexual offence:“Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.”

36. I am satisfied with the evidence on record.

37. I have considered the evidence of the Appellant that he was innocent and that mama Jeff, his cleaning lady and the mother to PW2, wanted to frame him and to extort money from him. He stated that when he refused, he was falsely accused of the offence. It is clear to me that this evidence is an after thought given that the Appellant did not cross-examine on the same. I have noted that the Appellant cross-examined PW1 and PW4, the mothers of the minors, and they both denied any previous interactions with him. I also find that there is no evidence presented to point out to any grudge between the mothers of the two minors or set up by any of them.

38. After careful consideration of all the issues raised by the Appellant in this appeal, I am convinced that the Appeal has no merit. The evidence provided in the lower court, and which evidence I have subjected to consideration and evaluation at the appellate stage, is sufficient to prove the two charges of defilement beyond reasonable doubt. It is my view after analyzing this appeal that the prosecution proved its case beyond reasonable doubt and that the grounds of appeal do not have any merit.

39. Although the Appellant has appealed against the conviction and sentence, he has not submitted on the sentence. I have no reason to disturb the sentence meted by the lower court.

40. This Appeal stands dismissed. The Appellant shall continue serving sentence. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 9THNOVEMBER, 2022. S. N. MUTUKUJUDGE