[2023] KEHC 25277 (KLR)

Obungu v Republic (Criminal Appeal E021 of 2023) [2023] KEHC 25277 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25277 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal E021 of 2023

MS Shariff, J

November 10, 2023

Between

George Odhiambo Obungu

Appellant

and

Republic

Respondent

Judgment

A. Case Background: 1. The Appellant was charged and convicted of the offence of defilement contrary to Section 8(1) (4) of the Sexual Offences Act No. 3 of 2006 and was sentenced to serve 15 years imprisonment.

2. The particulars of the charge were that on 23rd July 2020 at [Particulars Withheld] Location of Kisumu East Sub County within Kisumu County the Appellant intentionally caused his penis to penetrate the vagina of A. C. a child aged 16 years.

3. The Appellant faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars were as previously stated and that he intentionally touched the vagina of A. C.

4. Being aggrieved by both convictions and the sentence the Appellant filed this appeal which is premised on the following grounds:-i.That the learned trial magistrate erred in law by failing to establish the prosecution did not prove its case beyond reasonable doubt.ii.That the learned trial magistrate erred in in both law and facts by relying on uncorroborated evidence.iii.That the learned trial magistrate erred in both law and facts by relying on evidence that was contradictory.

B. Appellant’s submissions: 5. The Appellant submits that the prosecution failed to discharge its burden of proof on the following grounds:i.That age was not established as no original certificate of birth was produced.ii.The Clinical Officer who produced the medical evidence was not the maker of the same and did not lay any basis for producing the same on behalf of his colleague. Further that the Clinical Officer did not state her qualifications. Reliance has been placed on the case of Mutonyi -vs- R (1982) eKLR as quoted in the case of Solomon Munuve Muthu -vs- R (2020) Eklr.

6. That the Complainant had willfully been having consensual sex with the Appellant and that both the complainant and her mother wanted to have sexual intercourse with him and that it is only when he declined the Complainant’s mother’s advances that she decided to lodge a complaint against him. The Appellant cites the case of Martin Charo –vs- R. (2016) e KLR.

C. Respondents Submissions 7. The Respondent supports both the conviction and sentence and submits that all the ingredients of the offence had been proved; that is the minority age of the complainant, positive identification of the Appellant and penetration. The case of Musyoki Makavu -vs- R Criminal Appeal No. 172/2012 has been relied on, on the issue of proof of age of the complainant. On identification, the Respondent submits that the same was by way of recognition. As pertains to penetration the Respondent submits that the P3 form and PRC formed proved that the Complainant had been defiled.

8. The submissions of the Respondent on sentencing are out of context given that the Appellant was sentenced to a custodial sentence of 15 years and not 20 as submitted.

D. Analysis of the evidence: 9. This being a first appeal, I am guided by the sentiments expressed by Mativo J in Sylvester Wanjau Kariuki vs. Republic [2016] eKLR, where the learned judge held:-“The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely...The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.”

10. This court has reanalyzed, re-scrutinized and re-evaluated record of appeal and has established that the victim and the Appellant had known each other prior to the lodging of the complaint against the Appellant wherefore identification was by way of recognition.

11. I have also established that the age of the Complainant was 16 years at all material times based on the copy of the certificate of birth produced as p-exhibit 3. PW1 also testified that she was 16 years at the time of commission of the offence.

12. On penetration reliance has been placed on the testimonies of PW1, PW2 and PW6. The victim said that the Appellant sent a motor bike to pick her and she was taken to a Makuti house at an unknown place where the Appellant offered her a drink and she lost consciousness only to wake up on bed while naked. She was thereafter taken home by the same rider. Upon reaching home her mother noticed that she was not well and she was advised to rest. She was taken to hospital - Jaramogi Oginga Odinga Teaching and Referral Hospital the next day that was on 24th July 2020.

13. PW3 Gideon Were, the motor bike rider stated that he knew the Appellant personally and that he had taken the Complainant to the Appellant’s house.

14. PW5 Corporal Ben Kimiko the Investigation Officer said that a defilement report had been lodged on 26th July 2020 and that he traced the rider who led him to the house where the Complainant had been taken and the house owner led him to the Appellant’s house. The Appellant was later arrested on 18/1/2022.

15. PW6 Doctor Ombok testified that she examined PW1 who disclosed in her medical history that a friend had called her and taken her to a place past the showground where he had offered her a soda and water whereafter she lost consciousness and when she regained the same she found herself naked and the Appellant gave her two pills which she took.

16. This witness observed that the PW1 had a broken hymen, normal genitalia and a whitish discharge and on investigation nothing remarkable was found.

17. When put on his defence the Appellant stated that both the PW1 and PW2 had been seducing him by calling and texting him. He further said that PW1 had gone to be with him for sole purpose of having sex. That it was normal for PW1 to go to him to have sex.

E. Determination 18. The evidence of the Prosecution witnesses PW1, PW2, PW5 and PW6 is contradictory as to when PW1 was taken to hospital. Whereas PW1 says that she was taken to hospital a day after the incident, PW2 states that she took her daughter to hospital on a Saturday while PW5 and PW5 maintained that she was taken to hospital on 26/7/2020.

19. The prosecution did not explain the delay in lodging a complaint on the date of the alleged offence.

20. It is also noteworthy that whereas PW1 said that she woke up naked, she did not adduce any evidence of penetration and it was only when she went to hospital 3 days later that she then stated that her vagina was painful.

21. PW6 Dr. Ombok Lucy did not disclose her qualification wherefore she did not establish by way of evidence her expertise and criteria of her science, if any wherefore this court finds that her testimony was of no probative value. In this regard I am persuaded by the precedent of Mutonyi –vs- R where the court held that:““So as an expert witness who hopes to carry weight in a court of law, must be before giving his expert opinion;a.Establish by evidence that he is especially skilled in his science or art;b.Instruct the court in the criteria of his science or at so that the court may itself test the occurrence of his opinion and also form its own independent by applying those criteria to the fact prove.”

22. PW1 stated that upon receiving a call by the Appellant she then willfully boarded a motor bike sent by the Appellant to pick her. She did not decline nor did she make any query of the reason why the Appellant wanted to meet her. This lends credence to the Appellant’s defence that they had been having consensual sexual intercourse.

23. Whereas the Complainant was a minor hence incapable of giving consent, her general conduct was that of an adult. She willfully engaged in sexual intercourse and did not make any complaint to her mother who was also seducing the Appellant. The lodging of her complaint 3 days after the alleged incidence creates doubts as to the bono fides thereof.

24. The Appellant is thus accorded the benefit of the doubt and is availed the defence envisaged under Section 8 (5) of the Sexual Offences Act No. 3 of 2006 which provides that:“(5)It is a defence to a charge under this section if –a.It is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; andb.The accused reasonably believed that the child was over the age of eighteen years.”

25. I place reliance on the case of Martin Charo -vs- R (2016) Eklr.

26. On the balance I do find that it was unsafe to convict the Appellant wherefore I hereby set aside both the conviction and sentence and I do hereby set the Appellant free unless otherwise lawfully held.

DELIVERED, DATED AND SIGNED AT KISUMU THIS 10TH DAY OF NOVEMBER 2023. MWANAISHA. S. SHARIFFJUDGE