[2023] KEHC 24241 (KLR)

Nzoka v Republic (Criminal Appeal E064 of 2022) [2023] KEHC 24241 (KLR) (16 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24241 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E064 of 2022

GMA Dulu, J

October 16, 2023

Between

Jackson Kiilu Nzoka

Appellant

and

Republic

Respondent

(An Appeal from the conviction and sentence in Criminal Case No. 22 of 2015 delivered on 12th April 2016 at Makindu Law Court by Hon. E. M. Muiru(RM))

Judgment

1. The appellant was charged in the Magistrate’s court with defilement contrary to Section 8(1)(2) of the Sexual Offences Act No. 3 of 2006. The particulars of offence were that on 29th October 2014 in Kibwezi Sub-County within Makueni County intentionally and unlawfully caused his genital organ namely penis to penetrate the genital organ namely vagina of NN a child aged 9 years.

2. In 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 which being that on the same date and place intentionally and unlawfully touched the vagina of NN (name withheld) a child aged 9 years with his penis.

3. He denied both charges. After a full trial, he was convicted of the main count of defilement and sentenced to life imprisonment.

4. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal, and relied on the following grounds:-1. The learned Magistrate erred in law and in facts when he convicted him without observing that the evidence adduced against him were full of untruths.2. The learned trial Magistrate erred in both law and facts by convicting him without considering that there were no evidence to prove penetration without which the prosecution could not prove the offence of defilement to the required standard in law of beyond reasonable doubt.3. The learned trial Magistrate erred in law and facts in shifting the burden of proof to the appellant misapprehending and misdirecting herself on the evidence, hence arriving at the wrong conclusion.4. The learned trial Magistrate erred in law and fact by (failing) to observe that the prosecution evidence was untenable, unworthy, contradictory which required him to resolve the doubts in favour of the appellant.5. The learned trial Magistrate erred in facts and law by convicting him without properly applying the Evidence Act and for using uncorroborated evidence to convict and sentence the appellant.6. The learned trial Magistrate erred in both law and facts when he dismissed the appellant’s sworn defence in which he alleged possibility of being framed up due to an existing disagreement between him and the family of the complainant without giving cogent reasons.

5. The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by the appellant as well as the submissions filed by the Director of Public Prosecutions.

6. This being a first appeal, I am bound to consider the evidence on record afresh with a view to come to my own independent conclusions and inferences. Thus I am required to re-evaluate all the evidence on record, and am entitled to come to different findings based on my re-evaluation of the evidence on record – see Okeno =Versus= Republic[1972] EA 32 and Kariuki Karanja =Versus= Republic (1986) KLR 190.

7. In proving their case, the prosecution called four (4) witnesses. On his part, the appellant tendered sworn defence testimony and did not call any additional witness.

8. I have evaluated the evidence on record both for the prosecution and for the defence. The elements of the offence of defilement are the age of the complainant or victim who should be a child that is aged not more than 18 years. The second element is penetration of a sexual nature, even if partial. The third element is the identity of the culprit.

9. Each of the above three (3) elements has to be proved by the prosecution beyond any reasonable doubt as this is a criminal case.

10. Was the age of the victim or complainant proved beyond any reasonable doubt? The evidence on the age of the complainant is that of the PW1 NM the complainant. She stated in evidence on 8th October 2015 that she was 11 years old. She relied on a birth certificate that was not produced in court as an exhibit; thus that document has no evidential value herein.

11. The person under whom PW1 lived, that is PW2 RM did not testify to the age of PW1. PW2 only stated in cross-examination that she “took the child to hospital.” In her examination in chief, she did not at any point refer to PW1 as a child, though she referred to her own child who followed PW1 to school the morning after the incident.

12. Though the Magistrate saw PW1 in court, and heard her testify, in my view the prosecution failed to prove that the alleged victim PW1 was below the age of 18 or 9 years as alleged. The fact that the P3 form indicates that PW1 was 9 years old and she said later that she was 11 years did not satisfy the requirement of proof beyond reasonable doubt that she was below 18 or specifically the age testified to, in the absence of production of the birth certificate, or an adult confirming her age.

13. The second element of the offence as to be proved by the prosecution beyond reasonable doubt was penetration. In this regard, PW1 said that she was penetrated or raped, after the culprit tore her biker. PW2 RM stated that PW1 came back from fetching firewood at 7P.M and on enquiring initially kept quiet but later stated that she had been raped.

14. The medical evidence of PW3 Dr. Josephine Marita of Makindu Sub District Hospital was to the effect that she filled a P3 form in respect of PW1 on 4th November 2014 and that the hymen was broken and high vaginal swab showed presence of spermatozoa and puss cells. I note also that the treatment notes were also produced in court, as evidence.

15. In my view, from the evidence on record, the prosecution proved beyond any reasonable doubt that there was sexual penetration of the complainant or victim PW1.

16. I now turn to the identity of the culprit. The evidence as to whether the appellant was the culprit is that of PW1 alone. I appreciate that under the provisal to Section 124 of the Evidence Act (Cap.80), such evidence of a single victim witness of a sexual offence can be the basis of a conviction if it is believable and is so believed by the trial court for reasons to be recorded at the trial.

17. I note also that in the judgment, the trial court specifically directed itself to this consideration before finding that the appellant was the culprit.

18. Having myself reconsidered the evidence on record however, I am of the view that the evidence of PW1 was not believable. The first reason was the reluctance of PW1 to freely inform her guardian about the incident and even after the proceeding to school the next day, and even after they planned with PW2 to go to hospital the next day.

19. The more important reason why the evidence of PW1 cannot be relied upon to identify the culprit, is that PW1 stated in evidence that she was fetching firewood with M when the appellant approached and sent Mtuhembwa way before defiling her. The said M, a crucial witness was however not called by the prosecution to testify and no reason was given by the prosecution for such failure to call this crucial witness.

20. In addition to the failure to call M as a witness, the prosecution also failed to call the ‘child’ of PW2, who went and called PW1 from school that morning in order to go to hospital and report the incident to the police.

21. The gap left by the failure to call these two crucial witness or give the reason for failure to do so creates a big gap as to the truth of the evidence of PW1 regarding the identity of the appellant as the culprit – see Bukenya =Versus= Uganda (1973) EA. The benefit of that weakness in the prosecution evidence has to be given to the appellant, and I do so.

22. I thus find that the prosecution did not prove beyond reasonable doubt that the appellant is the culprit. I will thus allow the appeal, quash the conviction and set aside the sentence.

23. Consequently, and for the above reasons I allow the appeal quash the conviction and set aside the sentence. I order that the appellant be set at liberty unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED THIS 16TH DAY OF OCTOBER 2023 VIRTUALLY AT VOI.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantApplicantMr. Kazungu for State