[2023] KEHC 26840 (KLR)

Okeno v Republic (Criminal Appeal E052 of 2022) [2023] KEHC 26840 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26840 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal E052 of 2022

MS Shariff, J

November 10, 2023

Between

Charles Otieno Okeno

Appellant

and

Republic

Respondent

(Being an Appeal from original Conviction and Sentence in Winam SPM Sexual Offences Case No 80 of 2020 by Hon F. Rashid PM)

Judgment

B. Case Background 1. The Appellant was charged with the offence of defilement contrary to Section 8(1)(2) of the Sexual Offences Act No 3 of 2006. The particulars were that on 26/8/2020 at Nyamasaria area, Kasule Sub-location Kisumu East Sub-county within Kisumu County the Appellant unlawfully and intentionally caused his penis to penetrate the vagina of NBA a child aged 11 years. He also faced an alternative charge of committing an indecent act with a child.

B. Evidence 2. Upon arraignment, the Appellant denied the charges and the matter proceeded to hearing and the Respondent’s evidence was as follows;

3. PW-1, PC Yvonne Apama stated that she received the complaint from the victim’s mother. She recorded the statement and visited the scene where she established that the Accused was a neighbor to the victim. The Accused was later arrested and charged.

4. PW-2 Dr. Ombok Lucy from JOOTRH produced the P3 form. It was her testimony that upon examining the victim on 1. 9.2020, she noted normal genitalia with broken hymen.

5. PW-3 Kezia Tanui, a Clinical Officer from JOOTRH produced the PRC form after examining the victim on 28/8/2020. On the outer genitalia, she noted reddish mark at 4 and 5 O’clock at the vagina. The hymen was broken, anus intact and the laboratory results showed high vaginal sweat indicative of epithelial cells and blood cells.

6. PW-4 the minor stated that she was home alone on the material day as her mother had gone to bring her younger brother from a neighbour’s house. The Appellant then went to her home and inquired of her mother’s whereabouts and asked her to follow him. She complied and the Appellant undressed her and inserted his fingers onto her vagina. He thereafter told her to bend over and he inserted his penis into her vagina.

7. She stated that the Appellant told her not to scream or tell anyone. Her mother took her to hospital the following day as she said her private parts were painful.

8. PW-5 Quinter Atieno stated that she left the victim in the house whilst she went to fetch her son from a neighbour’s house. The following day, she met the wife of the Accused who confronted her. It was at that juncture that her daughter, the victim, told her that the Appellant had defiled her and threatened to kill her. PW5 then reported the incident to the police.

9. Upon consideration of the Respondent’s evidence, the trial court found that the Appellant had a case to answer and consequently put him on his defence.

10. The Appellant elected to tender sworn evidence. His evidence was that on 27th August, 2020 while at work during the day, his wife called him informing him that a neighbour alleged he had wanted to defile her daughter. He then advised the neighbour to take her daughter to hospital. On that night, the victim’s mother knocked at his door and stormed his bedroom naked intending to sleep with him. He pushed her out. He denied committing the offence.

11. DW-2 Maureen Miyoyi, the Appellant’ wife stated that on 27/8/2020, she found 3 samosas in the vehicle and thought the Appellant had an affair with the victim’s mother. She confronted the victim’s mother asking if she was interested in the Appellant whereupon the victim’s mother screamed the Appellant wanted to defile the victim. That the Appellant was later arrested.

C. Judgment 12. Upon considering the rival evidence tendered by the parties the trial court convicted the Appellant and sentenced him to serve 10 years imprisonment.

D. Appeal 13. The Appellant was dissatisfied with the said judgment and thus moved this court through a Memorandum of Appeal dated 20th October 2022, which is premised on the following grounds;a.The learned trial magistrate erred by placing the burden of proof on the Appellant and, thereby arriving at an erroneous decision.b.The learned trial magistrate erred by disregarding the Appellant’s testimony and his witness hence arriving at a wrong decision.c.The learned trial magistrate erred by convicting the Appellant solely based on the uncorroborated evidence of the victim and more particularly the evidence relating to the actual act of defiling the minor.d.The learned trial magistrate erred by convicting the Appellant despite the glaring gaps in the witness testimonies and more particularly the explained period between the time of alleged rape and the time the minor informed the mother of the defilement.e.The learned trial magistrate erred by finding that the evidence placed the Appellant at the scene of the crime yet the complainant raised the issue of defilement much later after the offence was allegedly committed.f.The learned trial magistrate erred by failing to find that the prosecution had not discharged their burden to the required standards; beyond reasonable doubt.

14. The court ordered the disposal of the appeal by way of written submissions. Both the Appellant and the Respondent filed their respective submissions.

E. Analysis and Determination. 15. In a first appeal, the duty of the court was held in Mark Oiruri Mose vs. R (2013) eKLR thus;“….the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.”

16. On this appeal, the challenge is on both the conviction and sentence. As is required of a court sitting on a first appeal is to identify the issues that fell for determination before the trial court, re-evaluate the evidence and make it’s own conclusion on the same. The issue that the trial court was called upon to determine was whether the prosecution had proved its case beyond reasonable doubt.

17. In a charge of defilement it behooves the prosecution to prove beyond any reasonable doubt the ingredients as envisaged by Section 8(1)(2) thus; the minority age of the victim, the act of penetration and lastly the positive identification of the perpetrator.

18. On the element of age, the charge sheet indicated the victim’s age as 11 years. In support of this indication, the prosecution/Respondent produced into evidence the victim’s certificate of birth. In finding the age as proved, the learned trial magistrate held;“If the date of birth is 17/5/2009 and the incident allegedly occurred on 26/8/2020, it means the complainant was about 11 years 3 months at the time of incident. This places her in the bracket of 12-15 years which is below the age of majority. I am thus satisfied that the age of the minor has been proved beyond any reasonable doubt.”

19. I have perused the record and come to the conclusion that the victim’s age was adequately proved.

20. The second limb is that of penetration. In her evidence, the victim testified that the Appellant called her and inserted his fingers and penis into her vagina. The medical evidence showed the victim had reddish mark in the vagina and the hymen was broken. The victim testified that at the time of examination, she was experiencing pain in her private parts.

21. Penetration is defined by Section 2 of the Sexual Offences Act as partial or complete insertion of the genital organs of a person into the genital organs of another person.

22. The medical evidence tendered by the Respondent shows that indeed there was penetration of the victim’s vagina and as per the victim’s testimony the same was achieved by insertion therein of the Appellant’s fingers and penis. I thus hereby find that the issue of penetration was proved. The medical evidence corroborated the minor’s evidence.

23. The third element is the identity of the perpetrator. The victim identified the Appellant as their neighbour. She testified that the Appellant had previously seduced her and requested her to be his lover. The victim’s mother also testified that the Appellant was their neighbour and the interaction between them is that the Appellant occasionally bought samosa from her. The identification of the Appellant was by way of recognition and I do find that the element of identification of the perpetrator was proved.

24. The Appellant also challenges the learned trial magistrate’s finding on the ground that the trial court ignored the Appellant’s testimony. A perusal of the trial court’s record reveals that the evidence presented by the Appellant and his witness was a narration of the chronology of events leading to his arrest and mere denial of the offence.

25. The Appellant further stated that the victim’s mother had wanted to have an affair with him but he had declined. The assertion that the victim’s mother had stormed his room naked is not supported by evidence. DW-2 did not mention such an incident as having occurred despite the Appellant stating that his wife was present during its occurrence. The allegation that DW-2 had disagreed with the victim’s mother was equally not proved.

F. Conclusion 26. Based on the reasons aforestated, I find no merit in this appeal and I hereby proceed to make the following orders;i.This appeal stands dismissed.ii.The conviction is upheld and the sentence is confirmed.iii.The sentence shall be computed from the date of arrest of the Appellant.

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