[2022] KEHC 428 (KLR)

Nzioki v Republic (Criminal Appeal E005 of 2020) [2022] KEHC 428 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 428 (KLR)

Republic of Kenya

In the High Court at Kitui

Criminal Appeal E005 of 2020

RK Limo, J

May 5, 2022

Between

Stephen Masila Nzioki

Appellant

and

Republic

Respondent

(Being an Appeal vide Principal Magistrate’s Court in Mwingi- Sexual Offence Case No. 9 of 2018 Judgement which was delivered by Hon. I.G. Ruhu-RM on 29th day of July 2020)

Judgment

1. Stephen Masila Nzioki, the appellant herein as charged with the offence of defilement contrary to Section 3(i) (4) of Sexual Offence Act No. 3 of 2006 via Mwingi Senior Resident Magistrate’s Court Sexual Offence Case No. 9 of 2018.

2. The particulars of the charge as per the charge sheet presented to that court are that on the 12th August 2017 within Kitui County, the appellant intentionally caused his penis to penetrate the vagina of (name withheld) a child aged 16 years.

3. The appellant denied committing the offence and the prosecution called a total of 9 witnesses to prove to their case and after trial the trial court found that the prosecution’s case had been proved against the appellant. He was convicted and sentenced to 15 years’ imprisonment He was aggrieved and filed this appeal.

4. A brief summary of the prosecution’s case at the trial reveals that the complainant was defiled by the appellant who was her Pastor when she went to the church to do some cleaning. As a result of defilement, the complainant fell pregnant and gave birth to a baby girl. The Investigating Officer arranged for DNA tests which were analyzed and the appellant was found to be the biological father of the infant. The appellant defended himself that he was away at the time the incident took place and faulted the manner in which the DNA test was carried out but all that was in vain as the trial court found him guilty of the offence.

5. The following is a summary of the evidence tendered at the subordinate court.

6. The Complainant (PW1-name withheld) testified that on 12th August 2017, she left home and went to a church known as ‘‘Christian Ministry Church’’ with a view to cleaning it as the appellant (the then Pastor of the Church) had requested her to go there on Saturday to do so. The witness informed the trial court while in the church, the appellant caught hold of her hand and pulled her to the back of the church, where the Pastor resided and defiled her after covering her mouth. She testified that after the ordeal, she went back home and was afraid to inform anyone but as fate would have it, after around one month, she realized she was pregnant and informed the Pastor (the appellant herein). She added that the Pastor gave her Kshs 3,000 to procure an abortion but she did not go for an abortion but instead kept the money.

7. The Complainant added that when the Pastor realized that she had not procured an abortion as instructed, he demanded a refund of Kshs. 3,000 and she yielded and gave him back the money after he reportedly threatened her with unspecified actions.

8. The girl testified that she later gave birth through caesarian section and that later she went with the baby and the appellant for a DNA forensic analysis at Kenyatta National Hospital whose results positively indicated that the appellant was the biological father of the baby girl. According to the victim, she was seventeen years old having been born in the year 2000 and that because of pregnancy she dropped out of school.

9. RM (PW2), the victim’s mother testified and confirmed that her daughter was born on 13. 11. 2000 and was a school going child when she was defiled. She testified that she noticed that her daughter was pregnant and when she prodded her, she denied being pregnant and at first refused to reveal who was responsible for the pregnancy. The mother testified that it was only after the girl gave birth that she revealed who the father of the baby was and that is how she came to know that it was the appellant who she knew as a Pastor in their local church where she was also a member.

10. The mother identified a Birth Notification Card in respectHer daughter from Nzawa Health Centre which indicated that she was born on 13th November 2000. She further testified that the appellant declined to talk to her when she went to him to inquire about his involvement and that instead she insulted her telling her that she was foolish and should stop calling him.

11. Judy Malia Muyambu (PW3) a village elder from Muhia village indicated that she was a committee member at Arising Christian Ministry where the appellant was a Pastor. She stated that he knew PW1 and her mother as they were neighbour and also attended the same church. That she knew that PW1 had stopped attending school and later came to learn that it was because she was pregnant.

12. Boniface Muse (PW4) a nursing officer from Nzawa Health Centre referred to an excerpt from an immunization register he prepared in reference to PW1. The excerpt indicated that her date of birth was recorded as 13th November 2000 in the register. It also indicated that she was immunized on 21st December 2001 for Polio and on 1st December 2001 for TB. He produced a copy of the register as Exhibit 7 and a letter certifying the expert as Exhibit 8.

13. JMM (PW5) deputy head teacher, N Primary indicated that PW1 dropped out of school in the second term of 2017. He produced a letter dated 12th July, 2018 to that effect, the same was marked as exhibit 9. He stated that he tried in vain to have the girl go back to school.

14. Dr. Ndirangu Joram (PW6) a Medical Doctor at Mwingi Level 4 Hospital indicated that he was testifying on behalf of his colleague Dr. Adrian who was undergoing internship. The appellant had no objection to that. He produced a discharge summary in reference to PW1 which indicated that she had given birth at the facility and later developed an infection which resulted in her admission in the hospital from 18th May 2018 to 18th June 2018. He also produced a P3 form recorded by his colleague marked as exhibit 5. The report indicated that her labia was normal, her hymen was not intact but not freshly broken she also had no discharge or infection.

15. Dr. Gladys Mboya (PW7), a Dentist and an expert in age assessment, testified and informed the trial court that she did assessment of the complainant on 21/09/2018 and found her to be 17 years of age. She tendered the age assessment as P. Ex. 6.

16. Nelly Maureen Papa (PW8) a Government Chemist Analyst, testified that she received a report from PC Judith amoit of Nguutani Police Station for a paternity test to determine the paternity of a child. She testified that on 27th July, 2018 at the Government Chemist Laboratory in Nairobi samples were obtained from the appellant herein, the complainant and the baby girl (Faith Maria). The expert stated that after carrying out forensic analysis, she concluded that the appellant was the biological father of the baby in question with the chances of 99. 99% chances. She tendered the DNA report as P. Ex4.

17. PC Judith Amoit (PW9) an officer based at Mui station indicated that a case of defilement was reported at the station on 13th July 2018 by PW1 and PW2. The report indicated that PW1 had been defiled by the appellant at ‘‘Arising Christian Church’’ where she had gone to clean the premises. She also indicated that PW1 conceived from the incident and gave birth to a baby girl. That the appellant was confirmed the father of the child from DNA testing. The officer indicated that he accompanied the appellant, PW1 and the child to the Government chemist for testing following instructions from her boss to have the DNA conducted as part of Police Investigations filing of the complaint.

18. When placed on his defence, the appellant in his own defence denied committing the offence. He stated that he never knew the complainant and only came to know her in court and that at the material time he resided in Masinga, Machakos County. She claimed that the charges were fabrication because the complainant had reportedly requested for money and he had declined.

19. He conceded that he went to Nairobi for DNA forensic analysis at Government Chemist in the company of a Police Officer, the complainant and the subject baby. He claimed that the results were to be out in 2 weeks as promised but that the results took too long and on 10. 09. 2018 he was asked to go and check the results at the Police Station but when he turned up he was arrested and later charged for defilement.

20. He faulted the process used in obtaining the samples and the DNA analysis arguing that the same was done in the absence of his family member. He denied that the girl dropped out of school because of early pregnancy stating that the P3 Form indicates that she disappeared from school. He further stated that the offence could not have taken place in a church because the Church was housed in a rental room in a market place.

21. The trial court upon evaluation of the evidence tendered, as observed above found the appellant guilty, convicted him and sentenced him to serve 15 years’ imprisonment.

22. In his petition of appeal herein, the appellant raised the following grounds namely: -i.That the trial magistrate erred in matter of law and facts in failing to find that the elements of defilement (age) were not conclusively proved to warrant a conviction.ii.That the learned trial magistrate erred in law and fact when he convicted the appellant without the charge sheet was defective.iii.That the learned trial magistrate erred in law and facts when he convicted the appellant without considering Section 200 (3) of the Criminal Procedure Code(Cap 75. )iv.That the learned magistrate erred in law and facts by relying on an evidence of persons whom he did not hear and observe so as to be in a position to determine their credibility.v.That the learned trial magistrate erred in law and fact when he convicted the appellant without considering the case was not well investigated and only relied on hearsay evidence.vi.That the learned trial magistrate erred in law and facts by not considering DNA results under Section 122A Cap 63.

23. In his written submissions the appellant submits that the age of the Complainant was not proved sufficientlyHe submits that the prosecution’s evidence was that the complainant was 17 years old while medical evidence stated that she was about 17-18 years. He submits that there was no evidential evidence to proof the same. He has relied on the cases of Charles Wamukoya Karani Vs. Republic, Criminal Appeal No. 72 of 2013, Hillary Nyongesa v Republic[2010] eKLR, where the court emphasized the importance of establishing the complainant’s age. The same finding was reached in Jon Cardon Wagner V Republic & 2 Others [2011] eKLR.

24. The appellant has also relied on the case of Richard Wahome Chege versus Republic [2014] eKLR where the court of appeal held that testimony from a victim’s mother is sufficient to prove age of a victim.

25. The appellant also takes issue with the charges sheet and has submitted that the same was defective. He indicates that he was charged with defilement under Section 8 (1) (4) of the Sexual Offences Act which does not exist.

26. The appellant further takes issue with the fact that his matter was not heard afresh when a new magistrate took over hearing the matter mid-way. He submits that this went against Section 200 of the Criminal Procedure Code.

27. The appellant also takes issue with the DNA testing stating that it was undertaken under instructions of a Police Officer who was not a Senior Officer.

28. Finally, the appellant submits that the prosecution’s case was not proven beyond reasonable doubt.

29. The State/Respondent opposed this appeal through oral submissions made by Okemwa, learned Counsel from the Office of the Director of Public Prosecution.He submits that the age of the Complainant was well established to be 17 years at the time adding that an age of a victim is not necessarily proved only by a birth certificate.

30. On the appellant’s allegation that the charge sheet was defective, the Respondent submits that though the charge sheet did not indicate that the appellant was charged under Section 8(1) as read with Section 8 (4) of the Sexual Offence Act., the omission was curable and not fatal.

31. He conceded that DNA was done without a court order but that nevertheless the offence was proved to the required standard.

32. This court has considered this appeal and the response made. The work of mandate of this court as the first appellate court is to re-evaluate the evidence tendered at the trial court with a view to reaching its own conclusion. I have already highlighted above, the evidence tendered at the trial court.

33. The appellant was charged with the offence of defilement which was framed in the charge sheet as contrary to Section 8(1) (4) of the Sexual Offence Act rather than Section 8(1) as read with Secction 8(4) of the Sexual Offence Act. Section 8(1) creates the offence as follows:‘‘(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement’’Section 8(4) of Sexual Offence Act provides the penalty for anyone found guilty as follows: -‘‘(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years’’

34. The appellant took issue with the way the charge sheet was drawn and strongly contends that it was defective a contention contested in equal measure by the Respondent. The forms the first issue for the determination in this appeal. The other issues are: -(ii)Whether the prosecution’s case was proved to the required standard.(iii)Whether DNA test was conducted properly.(iv)Whether the trial proceeded fairly and procedurally after transfer of the Magistrate who had partially conducted trial.(v)Whether the sentence was lawful/proper.

(i) Whether the charge sheet was defective. 35As I have already observed above the charge sheet presented to the trial court read that the appellant was being charged with defilement contrary to Section 8(1) (4) of the Sexual Offence Act No. 3 of 2006 rather than Contrary to Section 8(1) as read with Section 8(4).

36. It is true that there is no Section 8(1) (4) in the Sexual Offence Act. There is Section 8(1) and there is 8(4) and as I have distinguished above subsection one defines or creates the offence while subsection (4) provides for the sanction. There was a minor omission by the prosecution in the charge sheet but the question posed is whether the omission made the charge vague or unclear to the appellant when pleading to the charge. The provisions of Article 50(2) (b) of the Constitution demands that every charge against the accused should be clear and contain sufficient details. Furthermore, more Section 134 of the Criminal Procedure Code gives a description of what a proper charge should constitute.The Section reads:“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.’’

37. The essence of the Constitutional and statutory provisions is to give an accused person the right to a fair trial and right to know the crime in which he is facing in order to adequately prepare for defence and/or to plead.

38. In my considered view, the error in the charge sheet is minor and typographical. It did not render the charge ambiguous in any way.The particulars in the charge contain sufficient detail and reveal an offence under which the appellant was charged. The error in my view was curable under Section 382 of the Criminal Procedure Code as it did not occasion a miscarriage of justice to the appellant. Section 382 provides: -“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:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.’’

(ii) Whether the prosecution proved the element of defilement to the required standard. 39It is well settled going by the Sexual Offence Act that the following elements are necessary to prove defilements.a.Age of the victim.b.Penetrationc.Positive Identification of the offender

40. On the question of age, the evidence tendered during trial in my view and contrary to the appellant’s contention established and proved that the victim was aged 17 years of age.

41. Evidence from PW4, Boniface Muse a nursing officer from Nzawa Health Centre corroborated PW2’s evidence. The witness produced an excerpt of a permanent register for immunization (exhibit 7) which was a record kept by the health facility for immunizations carried out at the facility. The witness indicated that the record showed that PW1 was immunized for polio and TB on 21st December 2001 and 1st December 2001 respectively. He also indicated that the record indicated that PW1 was born on 13th November 2000.

42. Dr. Gladys Mboya (PW7), a dentist at Mwingi district hospital also indicated that she conducted an age assessment on PW1 on 21st September 2018 and tendered a report (as Exhibit 6). According to her, PW1 was 17 years old at the time of the assessment. The age of a victim in sexual offences is a crucial element.

43. In the Ugandan Court of Appeal case of Francis Omuroni –versus- Uganda, Criminal Appeal No. 2 of 2000; it was held that: -“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense...”

44. The Court of Appeal of Kenya has also expressed itself on the issue of age assessment. In Richard Wahome Chege versus Republic [2014] eKLR the Court of Appeal sitting in Nyeri (Visram, Koome & Otieno-Odek JJ.A) found the evidence of the complainant’s mother to be sufficient proof of age. The learned Judges expressed themselves as follows;

45. “On the contention that the age of the complainant was not established, it is our considered view that age is not proved primarily by production of a birth certificate. PW2 the mother of the complainant testified that the complainant was 10 years old. What better evidence can one get than that of the mother who gave birth? It is our considered view that the age of the complainant was not only proved by PW2 but supportive evidence was given by PW3 who examined the complainant and the complainant herself.”

46. In addition to the evidence of the complainant’s mother, medical evidence (P. Ex. 6) gave an indication that the complainant was 17 years in 2017 at the time of commission of the offence. It was proven beyond reasonable doubt that the complainant was a child falling under the definition of Section 8(4) of the Sexual Offences Act.

Penetration 47The element of penetration was it really established by PW1 and proved by the evidence of PW8. The complainant (PW1) gave a vivid account of what happened to her when she went to clean the church where the Appellant was the resident Pastor. The issue could have been swept under the carpet had the girl not have fallen pregnant. This is quite evident at how the victim tried as much as she could to cover the Pastor’s misdeed.The Pastor also tried in vain to procure an abortion when the attempt failed, he tried threats and open hostility but even that could not help him because the girl kept the pregnancy and later gave birth to a baby girl. PW4 tendered an anti-natal booklet (P Ex3) which indicated that PW1 received pre-natal care at Nzawa Health Centre. PW8 tendered DNA results (P Ex 4) showing that the subject baby was fathered by the appellant. Pregnancy of course is a biological condition that naturally results from a sexual activity which in itself indicates the element of penetration. This court is satisfied beyond doubt that the ingredient of penetration was well proved.

(iii) Identification of the Offender 48. The prosecution’s case on this element rested on the evidence of PW1 and to some extent PW2 and PW3. PW1 clearly stated that she had gone to church on a Saturday to clean the Church when the appellant took advantage of her and defiled her. She conceived as a result and the DNA results positively identified him as the father. The evidence of PW1 and PW2 was well corroborated by the scientific evidence by PW8. He was therefore squarely identified and connected with the offence.

(iv) Whether DNA test procedure was done properly 49. The appellant contends that deoxyribonucleic Acid (DNA) testing was not properly conducted because there were no family members from his end when the samples were taken and analyzed and that the results took longer than the Government Chemist had promised. There is however no legal requirement that a family member of a suspect must be present when the DNA analysis or test is being undertaken. DNA analysis is also not time bound and I find that it took relatively short time from 27th July, 2018 when the sample was taken to the time the report was out because as per the exhibit (Exb. 4) it was prepared & is dated 8th August 2018. The appellant has no reason to fault the report for any delay.

50. The evidence of Judith Amoit (PW6) shows that she received instructions on 12/8/2018 from the Officer Commanding Station Miuri Police Station to investigate the defilement report. The officer testified that the Officer Commanding Station instructed her to have the appellant undergo DNA test to establish paternity. The officer accompanied the appellant, the complainant and the baby to Nairobi Government Chemist for the test. The appellant himself concedes that he travelled to Nairobi willingly and in fact waited for the DNA results anxiously.

51. The procedure followed by the Investigating Officer was lawful Sections 122A and 122B of the Penal Code set out the procedure to be followed with regard to DNA sequencing. They provide as follows:“122A.(1)A police officer of or above the rank of inspector may by order in writing require a person suspected of having committed a serious offence to undergo a DNA sampling procedure if there are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect committed the alleged offence.(2)In this section -“DNA sampling procedure” means a procedure, carried out by a medical practitioner, consisting of -(a)the taking of a sample of saliva or a sample by buccal swab;(b)the taking of a sample of blood;(c)the taking of a sample of hair from the head or underarm; or(d)the taking of a sample from a fingernail or toenail or from under the nail, for the purpose of performing a test or analysis upon the sample in order to confirm or disprove a supposition concerning the identity of the person who committed a particular crime;“serious offence” means an offence punishable by imprisonment for a term of twelve months or more.

122B.section 122A resists compliance with the order, members of the police force, under supervision of an officer of or above the rank of inspector, shall be entitled to use reasonable force in restraining the suspect for the purpose of effecting the procedure. Senior police officer may order DNA sampling procedure on suspect.”The submission that the government chemist acted under the instructions of a police constable is misguided.

The contention by the appellant that the Government Chemist acted under distress or undue influence from the police is unfounded and baseless.

(v) Whether the succeeding magistrate breached the provisions of Section 200 of Criminal Procedure Code. 52. It is true going by the proceedings from the lower court that the Magistrate who initially conducted Hon. G.W. Kirugumi S.R.M was transferred after the prosecution’s case had closed its case and the appellant placed on his defence. The appellant applied to have the case heard denovo but the succeeding magistrate overruled him and for good reasons at that. This was the reasoning of the succession magistrate.“‘‘Considering the fact that nine witnesses have testified, I am alive to the fact that availability of these witnesses to testify may be a challenge. Their procurement is not guaranteed. Loss of memory is also a factor to be considered in view of the time that has lapsed since they testified. Moreover, the fact that this court didn’t observe the demeanour of the witnesses is not a bar to the continuation of this case from where it has reached.’’

54. The succeeding Magistrate also found that the case had taken long. This court finds that there was no basis for the appellant to insist that the case starts denovo other to cause further delays. The provisions of Section 34 of the Evidence Act provides as follows: -“34. (1) Evidence given by a witness in a judicial proceeding is admissible in a subsequent judicial proceeding or at a later stage in the same proceeding, for the purpose of proving the facts which it states, in the following circumstances—

(a)where the witness is dead, or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or where his presence cannot be obtained without an amount of delay or expense which in the circumstances of the case the court considers unreasonable, and where, in the case of a subsequent proceeding—(b)the proceeding is between the same parties or their representatives in interest; and(c)the adverse party in the first proceeding had the right and opportunity to cross-examine; and(d)the questions in issue were substantially the same in the first as in the second proceeding.(2)For the purposes of this section—(a)the expression “judicial proceeding” shall be deemed to include any proceeding in which evidence is taken by a person authorized by law to take that evidence on oath; and(b)a criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused”.

55. This court finds that the procedure adopted by the succeeding Magistrate was regular, proper and lawful.

(v) Whether the sentence was proper 56The provision of Section 8 (4) of Sexual Offence Act provides:“(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.The trial court handed the statutorily minimum sentence in handing the appellant 15 years’ imprisonment.He certainly has no reason to complain because given that he used his position of trust to commit the crime. He was the Pastor in the church and was required to take care of his flock but he sort of turned out to be a wolf in shepherd’s clothing and turned against a member of his flock and literally devoured her in the process because the life of the girl turned upside down. She dropped out of school and her life may never be the same again. In my view in the face of the aggravating factors well captured by the lower court, the appellant should count himself lucky for getting the minimum 15 years’ imprisonment.I have no basis to interfere with the sentence.In the end this court finds no merit in this appeal. The same is disallowed. The conviction and sentence is upheld. In addition to this and for the interest of justice, this court under Section 334 of the Criminal Procedure Code directs that the appellant does take responsibility for his actions by providing for the minor born as a result of the offence committed. In my view there is no difference between the said child and the other two children left by the appellant when he was jailed. He should therefore, take full responsibility and the Children’s Officer is directed to ensure that the same is done.

DATED, SIGNED AND DELIVERED AT KITUI THIS 5TH DAY OF MAY, 2022. HON. JUSTICE R. K. LIMOJUDGE