[2023] KEHC 25273 (KLR)

Ochieng v Republic (Criminal Appeal E023 of 2023) [2023] KEHC 25273 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25273 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal E023 of 2023

MS Shariff, J

November 10, 2023

Between

Peter Ouma Ochieng

Appellant

and

Republic

Respondent

(Being an appeal from the judgment of Hon. C. N. C. Oruo delivered on 25th April, 2023 in winam S. O. No. E058 of 2021)

Judgment

A. Case Background: 1. Appellant was charged and convicted of the offence of defilement contrary to Section (8) (1) (2) of the Sexual Offence Act No. 3 of 2006.

2. The particulars of the offence were that on 9th August, 2021 in chiga sub-location, Kisumu East sub county within Kisumu county the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of JLA a girl child aged 9 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 particulars whereof are similar and that he intentionally touched the vagina of JLA.

B. Evidence: 4. PW1 the Appellant, a girl child then aged 9 years gave unsworn testimony that on the material day she had returned home from school during lunch hour and had found the Appellant, who is her step father at home. He then sent one Valval to the shop and he then requested the PW1 to pick a cup from the table and whilst PW1 was picking the cup the Appellant grabbed her clothe gagged her with a piece of cloth, removed her panty and then defiled her. He thereafter cleaned her up and threatened to kill her were she to make any disclosure. PW1 returned to school while in immense pain. The next Monday the Appellant defiled PW1 yet again and this time round he wore something like a polythene bag on his penis before the act and he later threw the polythene bag in the toilet. This time round PW1 told her mother of the defilement. PW2 Everlyne Kanyango said that on the material day 9/8/2021 at 7 pm she had returned home from work and when JLA saw her she immediately stood up but had difficulties in balancing herself. PW2 then interrogated PW1 who disclosed that the Appellant had defiled her. PW3 Dr. Lucy Ombok produced the P.3 form and PRC form PW1 had bruises on her vagina at 9. 30 O’clock position. PW4 Corporal Khaemba was the Investigating Officer and he stated that pursuant to the lodging of a defilement report at Chiga Police Post on 10/8/2021 at 11. 23 hours, he commenced investigation and later arrested the Appellant. This witness was already acquainted to the Appellant prior to the lodging of the complaint against him. Upon conclusion of the prosecution’s case the Appellant was put on his defence and he denied the charges and maintained that he knew nothing of the charges that he faced. All his witnesses also denied knowledge of the charges. The trial court eventually convicted the Appellant and sentenced him to life imprisonment on the first count.

C. Appeal: 5. The Appellant was aggrieved by both the conviction and the sentence and filed this appeal which is premised on the following grounds:-a)That the learned trial magistrate erred in law and fact by failing to notice that the prosecution did not prove their casebeyond any shadow of doubt.b)That there was no medical evidence availed by the prosecution that could support the findings and judgment of the trial court.c)That the learned trial magistrate failed to appreciate the several material contradictions in the prosecution case that raised a reasonable doubt that ought to have been resolved in favour of the Appellant.d)That the trial magistrate erred in law and fact by convicting and sentencing the Appellant without considering the facts of the case and the law provisions.

D. Analysis and determination. 6. 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.”

7. The court has re-evaluated, reanalyzed and rescrutinised the evidence adduced before the trial court and it has found that the prosecution had established its case against the Appellant on the required standard that is beyond any reasonable doubt.

8. In its trite principle of criminal law in a charge of defilement is minority age of the victim, identification of the perpetrator and penetration.i)Age: The age of the victim was proved by way of a certificate of birth produced as p. exhibit 3 which proved the PW1 was 9 years at the time of the commission of the offence.ii)Identification: The Appellant was PW1’s step father and thus identified by way of recognition.iii)Penetration: PW1 testified that the Appellant had defiled her twice. In the 2nd time he had worn a condom. She reported the 2nd incidence. PW2 noticed that PW1 had difficulties in balancing herself while standing and she became suspicious and upon interrogation PW1 disclosed the two incidents of defilement by the Appellant. PW3 Dr. Lucy Ombok produced a P3 form P. exhibit 1 which revealed a broken haymen and normal external genitalia. This witness also produced a PRC P. exhibit 2 form compiled by Dr. Calvin who she had worked with and was thus familiar with his handwriting. The PRC form disclosed bruises on the vagina at 9. 30 O’clock position.

9. Save for making denial the defence did not shake the prosecution’s case at all.

10. I do find that he conviction and sentence was safe and I do hereby dismiss this appeal for want of merit.

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