[2023] KEHC 25927 (KLR)

Odiyo v Republic (Criminal Appeal 25 of 2021) [2023] KEHC 25927 (KLR) (29 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25927 (KLR)

Republic of Kenya

In the High Court at Vihiga

Criminal Appeal 25 of 2021

JN Kamau, J

November 29, 2023

Between

Peter Ochieng Odiyo

Appellant

and

Republic

Respondent

(Being an Appeal from the Judgment of Hon S.O. Ongeri (PM) delivered at Vihiga in Senior Principal Magistrate’s Court in Criminal Case No 36 of 2019 on 3rd November 2021)

Judgment

Introduction 1. The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. He was convicted by Hon S.O. Ongeri (PM) on the main charge and sentenced him to twenty two (22) years imprisonment.

2. Being dissatisfied with the said Judgement, on 16th November 2021, the Appellant lodged the Appeal herein. The same was dated 17th November 2021. He set out fifteen (15) grounds of appeal.

3. His Written Submissions were dated 16th October 2023 and filed on 17th October 2023 while those of the Respondent were dated and filed on 1st November 2023. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety.

Legal Analysis 4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.

5. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify and thus make due allowance in that respect.

6. Having looked at the Appellant’s Grounds of Appeal, his Written Submissions and those of the Respondent, it appeared to this court that the issues that had been placed before it for determination were as follows:-a.Whether or not the Prosecution proved its case beyond reasonable doubt; andb.Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant by the Trial Court was lawful and/or warranted.

7. The court dealt with the said issues under the following distinct and separate heads.

I. Proof Of Prosecution’s Case 8. Grounds of Appeal Nos (1) (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13) and (14) of the Petition of Appeal were dealt with under this head as they were all related.

9. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases is proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement.

10. It is now settled that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and identification of the perpetrator as was held in the case of George Opondo Olunga vs Republic [2016] eKLR, a case that the Appellant also relied upon. This court dealt with the same under the following distinct and separate heads.

A. Age 11. The Appellant did not specifically submit on this issue. On the other hand, the Respondent submitted that the Appellant did not dispute the age of the Complainant (hereinafter referred to as “PW 1”). It pointed out that she testified that she was born in 2006 and was thus thirteen (13) years of age at the time of the alleged offence.

12. It averred that although a Birth Certificate was not tendered in evidence, an age assessment was carried out and the Report tendered in evidence. In this regard, it placed reliance on the case of Fappyton Mutuku Ngui vs Republic (eKLR citation not given) where it was held that conclusive proof of a minor’s age did not have to be proven by a birth certificate and that there were other modes to prove such age of a minor.

13. It was correct as the Respondent pointed out that the age of a child in defilement cases could be proved in many ways including observation where a child was of very tender years. In this case, this court noted that the Learned Trial Magistrate took PW 1 through voir dire examination. This would not have been necessary if PW 1 was a child over fifteen (15) years.

14. Be that as it may, as the Appellant did not contest this issue, this court did not find it necessary to belabour the point and agreed with the Respondent that in the absence of any proof to the contrary, PW 1 was a child. However, as the court could not trace the Age Assessment Report in the lower court file or the Record of Appeal, it could not ascertain her exact age. Having said so, the Learned Trial Magistrate noted in his decision that the Age Assessment Report proved that PW 1 was aged thirteen (13) years at the material time.

B. Identification & Penetration 15. This court deemed it prudent to deal with these issues under one (1) head as they were both related and intertwined.

16. The Appellant submitted that the Learned Trial Magistrate determined that this was a case of recognition and not identification because he was known to PW 1. He contended that GAO (hereinafter referred to as “PW 2”) and DA (hereinafter referred to as “PW 3”) both of whom he stated had testified that they were his in-laws without clarifying how this was so. He argued that in African society, in-law could denote different kinds of relationships.

17. He added that no evidence was led as to the frequency of meetings between his family and the families of PW 2 and PW 3 so that the Learned Trial Magistrate could gauge familiarity.

18. He further submitted that the dock identification was worthless as was held in the case ofJohn Mwangi Kamau vs Republic [2014] eKLR and asserted that an identification parade ought to have been conducted. It was his contention that PW 1’s parents and/or guardian’s gave her his name and it was easy to identify him as he was sitting in the dock alone.

19. On its part, the Respondent averred that it was not possible for PW 1 not to have known the Appellant herein as she was PW 2’s daughter. It also stated that PW 1 positively identified him in court and hence the ingredient of identification was proven beyond reasonable doubt.

20. In her evidence, PW 1 stated that on 12th June 2006, she was coming from school at about 1300 hours when she found the Appellant planting napier grass. She told him that she would go to school after lunch. He then pulled her, covered her mouth, undressed and defiled her. He had a panga next to him and he threatened her not to tell anyone what had happened. She did not tell PW 2 whom she lived with what had transpired.

21. On the following day 13th June 2019, at about 1300 hours, she was again coming from school when she found the Appellant planting napier grass. He grabbed her again, undressed and defiled her. He had a panga and threatened her again against telling anyone what had happened.

22. The next day, 14th June 2019, she was going home at about 1300 hours when she found him planting napier grass. He grabbed her again and defiled her. At the time, he had placed the panga on her neck and covered her mouth.

23. In her cross-examination, she stated that he called her when she was ten (10) metres from the bridge and that one could see his house from the bridge. When she was re-examined she stated that one could not see where he was because there were many trees.

24. It was not lost to this court that PW 2 also testified that the scene of the offence was two hundred (200) metres from the scene. She further said that from the Appellant’s house to the bridge, it was twenty (20) metres.

25. While PW 1 could not be faulted for not having given the exact distance of the Appellant’s house from the bridge, the question that came to this court’s mind was that if one could not see where the Appellant was because there were trees and this was ten (10) or twenty (20) metres from the bridge, how did he grab her? There was a gap in the explanation of his this happened.

26. Whereas PW 1 may have recognised the Appellant since he allegedly defiled her thrice and because she used to go to his barber shop in 2016 and as she explained that she did not change the route because that that was the one road she knew, the modus operandi of how the Appellant defiled her on the three (3) consecutive days did not sound credible.

27. Although this court did not wish to negate the fact that a person who was traumatised could behave in ways which would not appear normal to others, it was nonetheless not clear why if PW 1 was so traumatised as she exhibited in court while testifying, on 12th and 13th June 2019, she ate lunch after the ordeal as if everything was normal and further used the same road at the same time on 13th and 14th June 2019.

28. Her evidence that on 14th June 2019 she found PW 3 fetching water and when she asked her why she was crying, she told her that she had some pain whereupon PW 3 took her home and gave her medicine also left more questions than answers in the mind of this court. This fact was confirmed by PW 3 who stated that she saw PW 1 walking in pain and gave her some Brufen. The reason for PW 3 to give PW 1 medicine was left hanging and was open ended.

29. Notably, when PW 1 was cross-examined, she denied that she had experienced menstrual periods, a fact that PW 2 reiterated in her evidence.

30. According to the Hospital Attendance Note, PW 1 was taken to hospital on 17th June 2019, the same day that the Post Rape Care Form (PRC) was completed. The P3 Form showed that the incident was reported to the police on 16th June 2019. The question that arose in the mind of the court was why if PW 2 and PW 3 confirmed that PW 1 was defiled on 14th June 2019 and she was bleeding to the extent that her dress was blood stained, she was taken to hospital three (3) days later.

31. PW 2 had also told the Trial Court that she examined PW 1’s private parts on 14th June 2019 and noted that the same were swollen. However, the P3 Form indicated that PW 1’s external genitalia was normal. PW 2’s and PW 3’s testimony that PW 1’s external genitalia was swollen was therefore not supported by scientific evidence. This was evidence that the Prosecution ought to have made watertight so as to link the Appellant to the alleged offence.

32. Hajiwa Wawire (hereinafter referred to as “PW 5”) was a Clinical Officer at Serem Health Centre. He noted that PW 1’s hymen was broken and there was a foul smell. All other tests including HIV, Syphllis and Urine tests were negative. He concluded that it was defilement.

33. On being cross-examined, he admitted that he did not complete the part of the form that would have shown that he had concluded that PW 1 had been defiled. He asserted that he concluded that she had been defiled because the hymen was missing.

34. The fact that PW 1’s hymen as broken was not conclusive evidence that it had been broken following penile penetration and that it was the Appellant who broke the same. Indeed, a hymen could be missing due to other reasons other than sexual activity. It was not lost to this court that PW 5 was silent as to whether the breakage of PW 1’s hymen was recent or old.

35. However, the P3 Form was non-committal as to whether PW 1 was actually defiled. As the Appellant submitted, the continuous defilement would have caused bruises which were absent three (3) days later.

36. Testimony of a witness of penetration is usually corroborated by medical evidence as was acknowledged in the case of Mohamed Omar Mohammed vs Republic [2020] eKLR.

37. The Respondent’s assertions that penetration means partial or complete insertion of the genital organs of a person into the genital organs of another as provided in Section 2 of the Sexual Offence Act was correct. However, as PW 1 was emphatic that the Appellant fully inserted his penis into her vagina three (3) times, there ought to have been evidence of the same when she was examined three (3) days after the alleged incident.

38. The bloodstained under pant and dress which were not presented to the trial court greatly weakened the Prosecution’s case. These were vital items that would have been tendered in evidence having been mentioned by PW 2 and PW 3 to ascertain whether the blood was a result of menstruation or defilement. If the blood was as a result of defilement, the injuries would have been so serious as to have been observed three (3) days later when PW 1 was taken to hospital.

39. In this regard, this court found the Respondent’s submission that Section 124 lowered the standard of collaboration in cases of defilement could not have been further from the truth. In fact, while a trial court could rely on the evidence of a single witness, it was mandatory to reasons for such reliance to be recorded in the proceedings. Indeed, the use of the word “shall” connotes mandatory and not discretionary action.

40. The said proviso to Section 124 of the Evidence Act states that:-“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: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 (emphasis court) 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 (emphasis).”

41. Notably, a trial court must exercise great caution before relying on the evidence of a single witness to convict an accused person as it would be one person’s word against the other.

42. The court found and held that there were so many gaps in this case that restrained itself from finding that the proviso of Section 124 of the Evidence Act Cap 80 (Laws of Kenya) was applicable in the circumstances herein.

43. Considering the gravity of the offence that the Appellant was facing, it was the view of this court that PW 5’s evidence was very casual and sketchy. It could not also state with certainty if at all the incident happened as PW 1 told the Trial Court.

44. Her version of how the incident occurred did not sound credible and created doubts in the mind of this court. The inconsistency and gaps in her evidence and that of PW 2, PW 3 and PW 5 led this court to have doubts as to what may have transpired on the material dates.

45. These inconsistencies, gaps, discrepancies or contradictions in the Prosecution’s case were material and relevant and weakened its case. The co-existing circumstances weakened the inference of guilt on the Appellant’s part and this court could not with certainty determine that he was identified as the perpetrator of any offence, it at all and/or if penetration actually occurred as PW 1 had contended. In view of the inconsistencies, contradictions and unexplained gaps in the Prosecution case, it was not possible for this court to conclusively link the Appellant herein to his defilement of PW 1.

46. While this court could not vouch for his innocence as it was not clear people he denied knowing would accuse him of such a serious offence, this court nonetheless found and held that he was under no obligation to assist the Prosecution to prove its case. The burden of proof did not shift to him. This burden lay with the Prosecution to prove its case as stipulated in Section 107 (1) of the Evidence Act which states as follows:-“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

47. Further, Section 108 of the Evidence Act stipulates as follows:-“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

48. In addition, Section 109 of the Evidence Act further states that:-“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

49. Accordingly, having considered all the evidence that was adduced during trial and the respective Written Submissions, this court came to the firm conclusion that the Prosecution did not prove its case to the required standard which in criminal cases is proof beyond reasonable doubt. Indeed, the judgment was against the evidence that was adduced during trial.

50. In the premises foregoing, Grounds of Appeal Nos (1) (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13) and (14) of the Petition of Appeal were merited and the same be and are hereby upheld.

II. Sentence 51. Ground of Appeal No (15) of the Petition of Appeal was dealt with under this head.

52. This ground was rendered moot after this court found that the Prosecution did not prove its case to the required standard. This court nonetheless deemed it necessary to pronounce itself on this issue as it was a ground of appeal and parties had submitted on the same.

53. As pointed hereinabove, the Appellant herein was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act. Section 8(3) of the Sexual Offences Act provides that:-“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”

54. The sentence of twenty two (22) years that the Learned Trial Magistrate had meted on the Appellant herein was therefore illegal, unlawful and had no basis of the law and was not lawful as the Respondent had submitted. Indeed, the Learned Trial Magistrate erred in having meted a sentence that exceeded what was prescribed by the law.

55. Had this court found him to have defiled PW 1, then the correct sentence under Section 8(3) of the Sexual Offences Act ought to have been twenty (20) years imprisonment.

56. Having said so, there is emerging jurisprudence for courts to exercise their discretion to mete out lower sentences. In the case of Dismas Wafula Kilwake vs Republic [2018] eKLR, the Court of Appeal held that Section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing offences. As the Prosecution did not prove its case against the Appellant herein, this court did not find it necessary to say more than this.

Disposition 57. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal that was dated 16th November 2021 and filed on 17th November 2021 was merited and the same be and is hereby allowed. The Appellant’s conviction and sentence be and are hereby set aside and/or vacated as they were both unsafe.

58. It is hereby directed that the Appellant herein be and is hereby released from custody forthwith unless he be held for any other lawful cause.

59. It is so ordered.

DATED AND DELIVERED AT VIHIGA THIS 29TH DAY OF NOVEMBER, 2023J. KAMAUJUDGE