[2023] KEHC 23463 (KLR)

Okumu aka James Aputi v Republic (Criminal Appeal E035 of 2022) [2023] KEHC 23463 (KLR) (6 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23463 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal E035 of 2022

PJO Otieno, J

October 6, 2023

Between

Mark Okumu aka James Aputi

Appellant

and

Republic

Respondent

(Being an appeal from the conviction and sentencing of Hon. Eric Malesi, PM in Kakamega CMC. S.O. Case No. 151 of 2018)

Judgment

1. The Appellant was arraigned before the Principal Magistrate at Kakamega in Sexual Offences Case No. 151 of 2018 charged with the offence of defilement contrary to section 8(1)(4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on 25/11/2018 in Kakamega town within Kakamega County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of AO, a child aged 16 years.

2. In the alternative, the Appellant was charged with the offence of indecent act with a child contrary to section 11(1) of Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on 25/11/2018 in Kakamega town within Kakamega County, the appellant intentionally and unlawfully caused his penis to touch the vagina of AO a child aged 16 years. The appellant pleaded not guilty and the case proceeded to full trial with the prosecution presenting only three (3) witnesses.

3. PW1, the victim, testified that in the year 2018 she was 16 years old and working as a domestic worker in Kisumu where she decided to resign and return home in Kakamega. When she got to Kakamega, she did not have enough fare and decided to walk home and on her way she met with one Kevo, a friend, who was with the Accused. They all went to Kevo’s place and Kevo then left her with the Appellant in the house and took long to return. The Appellant then tried to force himself on her and she refused. She left and the Appellant escorted her and even helped her carry her clothes. On the way, they reached a place with several trees and the Appellant forced her to have sexual intercourse with him. She struggled with the Appellant thus ending up hurting her eye and tongue. She went to the hospital whereas the Appellant took off with her clothes.

4. On cross examination she stated that she screamed and the appellant threatened to stab her and when she screamed again he covered her mouth.

5. PW2, a Clinical Officer who examined the victim testified that the victim had nail scratches on the neck and left eye and her tongue had a cut on the lower part as a result of biting. Her vaginal area had blood and lacerations. He also stated that he conducted urinalysis for the Appellant and the victim and that they both had puss cells an indication of candidiasis which is mostly in female but can be seen in a man who had recently had sexual intercourse with a woman who has the infection.

6. PW3 No. 73400, attached at Kakamega Police Station testified that the victim went to the station at 26/11/2018 and reported to have been defiled by the Appellant. The victim was sent for medical examination which results came back positive. The Appellant was arrested and they obtained a baptismal card from the Catholic Church which indicated that the victim was born on 17/3/2002 and which card was produced as PEXH 2.

7. On cross examination he stated that the victim was unable to identify the exact point where the incident occurred as the place was confusing. He further stated that they did not recover the clothes the victim was wearing.

8. The evidence of PW3 marked the close of the prosecution case with the Court ruling that a prima facie case had been established and the Accused person was put on Defence.

9. The Defence called one witness, the Appellant herein, who elected to adopt his statement in which he denied the charges and stated that on 25/11/2018 he was in Kisa area and on 26/11/2018 at Maraba stage where he was arrested only to be informed at the station that he had defiled PW1. He was then taken to the hospital where it was said that he had puss cells though they never informed if it matched those in PW1 and since he had a wife, to him he was likely to have puss cells. He denied knowing the Kevo mentioned by PW1 and questioned how PW1was claiming she didn’t know the area where Kevo lived well yet she was there the previous day. He further questions why PW1 agreed to be seen off by a stranger and that if at all he was to defile her, why not in the house where there was a bed. He claimed that PW1 might have been defiled by Kevo and decided to fix him. He equally questioned the age of PW1 on how she was baptized in the year 2002 and her baptismal card prepared in 2018.

10. His evidence marked the close of the defence case and Judgment was subsequently delivered and he was sentenced to fifteen years’ imprisonment.

11. Dissatisfied with the Judgment of the trial Court, the Appellant has lodged this appeal which is premised on the grounds that: -“a)That the prosecution evidence was wanting and contradictory and therefore failed to meet the threshold under the Sexual Offences Act.b)That the learned trial magistrate failed to appreciate the lack of scientific evidence to back the prosecution’s case and more specifically lack and/or absence of DNA evidence.c)That the learned trial magistrate failed to properly consider the appellant’s defence.d)That the age of the victim was not well and properly ascertained.e)That the learned trial magistrate was biased against the appellant.f)That the conviction was unsafe and the sentence was excessive in the circumstance.”

12. This Court directed that the appeal be canvassed by way of written submissions and can only see the Appellant’s submissions on record, with none from the prosecution.

Appellant’s Submissions 13. It is his submission that the elements for the offence of defilement were not met to the requisite standards in that;a.No DNA was conducted on the Appellant to prove that the spermatozoa in the victim’s vagina was that of the Appellant.b.No birth certificate was produced to prove the age of the victim even though she indicated she had it at home with the court relying on a baptismal card which appeared to be new.c.There was no positive identification of the perpetrator since the victim met the Appellant for the first time the day she was defiled and was only identified to her as ‘Jemo’ and that the recorded evidence did not show the description the complainant gave to the good Samaritan on 26/11/2018 that led to the arrest of the Appellant.

14. It is then argued that it was paramount for the trial court to satisfy itself that the victim is telling the truth before believing the sole evidence and in doing so the Court must point out instances of misdemeanor which the trial Court relied on. The trial Court is faulted for having failed in that regard and reliance is placed on the decision in Jon Cardon Wagner v Republic & 2 others(2011) eKLR where the Court held that: -“It is required which is of paramount importance, that a trial court must indicate or point out instances of demeanor which he noted and which he relies upon as a basis of accepting the evidence of a particular witness.”

15. It is then pointed out that the trial court believed the victim because she had a fair share of hardship young in life yet what he needed to point out was her demeanor on 7/3/2022 when she testified. On the bias by the trial Court the Appellant points out that he was represented by an advocate and when the prosecution asked for an adjournment on 17/2/2022 it was granted but on 7/3/2022 when the matter came up for hearing his advocate was before another court and the Court declined to allow him to look for his counsel and forced him to proceed unrepresented. He concludes by submitting that the trial Court brushed off the Appellant’s defense without giving sufficient reason especially his question on why important witnesses were not called.

Issues, Analysis and Determination 16. The Court has considered the grounds of appeal in line with the proceedings of the lower court and the Submissions by the Appellant and discerns the issues that fall for determination to be: -a.Whether the ingredients for the offence of defilement were proved by the prosecution against the appellant beyond reasonable doubt?b.Whether the defence offered by the appellant was considered?c.Whether the trial magistrate was biased?d.Whether the sentence meted was excessive?

Did the prosecution prove the ingredients for the offence of defilement against the Appellant beyond reasonable doubt? 17. It was the unshifting duty of the prosecution under section 8(1) of the Sexual Offences Act to prove that the Appellant had committed an act which caused penetration, where complete or incomplete with a child is guilty of an offence termed defilement. That duty obligated that the prosecution proves the age of the complainant as a minor, and that there was penetration on the minor by the Appellant. See George Opondo Olunga v Republic [2016] eKLR.

18. It is important the prove the age of a victim of defilement under the Sexual Offences Act, by cogent evidence because the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of victim. See Hadson Ali Mwachongo v Republic [2016] eKLR.

19. In this case PW1, the victim, told the Court that she had a Birth Certificate at home yet a Baptismal Card, issued months before the incident, appearing to be new, was produced instead. The Court has looked at the document and notes, in agreement with the Appellant’s reservations, that the document appears to be by one hand and was never stamped at the time of baptism, first communion nor confirmation, the rites which were conducted between 2002 and 2014. Such disparity creates a doubt in the mind of the Court as to the authenticity of the document. Such was a case that required more interrogation on why the document was stamped and dated later than its date of authorship. It is of note that the Accused had always been represented by Counsel including on the last appearance when the prosecution was given a last adjournment yet on the date the matter proceeded, there is no mention of the Advocate. While the Appellant’s contention that the Court denied him a chance to call his Advocate who was in another Court is not supported by the records, it is the duty of the Court to protect the Accused person’s right to legal representation, and where one has had an Advocate on record, it behoves the Court to record why it opts to proceed in the absence of Counsel. In this case it would have sufficed to record a word from the Accused on the whereabouts of his Advocate. Failure to do so was an error on the Court which then justifies the complaint by the Appellant.

20. That aside, there are several ways in which the age of a victim can be proved as was settled by the Court of Appeal in the case of Edwin Nyambogo Onsongo v Republic(2016) eKLR to be sufficient if proved by documentary evidence such as a Birth Certificate, Baptism Card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. The Court then stressed that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.

21. Here, baptismal card was produced despite the anomalies highlighted, not because there was no Birth Certificate, but because the same was kept at home. No parent to the girl was called to prove the year of birth. In her evidence, the girl, who was then an adult, was content to say the year of birth without much details. While a Baptismal Card can be a sufficient proof of date of birth, in this matter, the document produced lives doubt in my mind that it could have been cooked for the purposes of the case. The Court, therefore finds that the production of the Baptismal Card by the prosecution was not credible proof of the age of the victim to merit the finding of guilt. This determination would be sufficient to allow the appeal but here the court needs to go further and analyse the evidence on the other ingredients of the offence.

22. On the second ingredient, penetration, the evidence of a victim on penetration is sufficient by itself provided that the Court records its reasons for being satisfied that the alleged victim is telling the truth.

23. In her evidence, the Complainant herein testified how the Appellant escorted her out of Kevo’s house and on the way, at a place with several trees, the Appellant forced her to have sexual intercourse with him. She recounted how she struggled with the Appellant thus ending up hurting her eye and tongue. The significance of medical evidence in sexual offences cases cannot be gainsaid and in this particular case it was the evidence of PW2, a Clinical Officer, that in examining the Complainant’s vaginal area she had blood and lacerations. He also stated that he conducted urinalysis for the Appellant and the victim and that they both had puss cells an indication of candidiasis which is mostly in female but can be seen in a man who had recently had sexual intercourse with a woman who has the infection. Penetration was thus proved indeed. Penetration on its own is however not conclusive of the guilt of the Accused. The question to be determined is whether the Appellant is the person who defiled the complainant and this brings us to the next element of identification.

24. Courts have held that the identification of a perpetrator should be certain and free from error. InMercy Chelagat v R (2022) eKLR it was held as follows;“Law on identification is well settled, and this court has from time to time said that the evidence relating to identification must be scrutinized, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error.”

25. From the evidence of PW1, the victim, she was unequivocal to have met the appellant for the first time the day she was defiled. During the cross examination of PW3, he also confirmed that the victim had never met with the victim before the incident. The appellant was therefore a person not known to her. Looking further into PW1’s testimony on cross examination, she stated that the person who carried from the scene told her that he knew the appellant who had defiled her. It is questionable how this unnamed person knew it was the appellant when there was no evidence that he met or saw him. This was a case that would have been best handled by calling that alleged informant. He was never so called.

26. Whether the Complainant gave a description of her assailant to the good Samaritan and even the police is unclear at all. The complainant only knew the assailant’s name as “Jemo” which she gave to the good Samaritan. That was not sufficient to relate the Appellant with the attack on the victim to the good Samaritan. It is also scanty how that information led to the arrest. On his part, PW3 testified that the Complainant stated that she could identify him but failed to mention if a description of the assailant was given beforehand. The importance of describing an assailant by the victim was stressed in Maitanyi Gv Republic (1986) KLR 198 where the court held as follows;“There is a second line of inquiry which ought to be made and that is whether the complainant was able to give some description or identification of his or her assailants, to those who came to the complainant’s aid, or to the police. In this case no inquiry of any sort was made. ……. if a witness receives a very strong impression of the features of an assailant, the witness will usually be able to give some description. If on the other hand the witness says that he or she could not identify or recognize the person, then a later identification or recognition must be suspect, unless explained.”

27. In this case, the complainant’s assailant was not known to her and in order to test the correctness of the identification of the Appellant, an identification parade ought to have been conducted to test the correctness of the identification of an Accused person by a witness who did not know him prior to the incident. See James Tinega Omwega v R. (criminal Appeal 59 of 2011) (2014) eKLR where the Court observed that ‘the law is settled that in general identification of a suspect who was a stranger at the time the offence was committed which was not followed by the witness describing the suspect to the police who would organize a properly conducted identification parade at which the witness is afforded an opportunity to affirm his identification by pointing out the suspect in a dock identification which in some cases is regarded as worthless’.

28. There are evidential gaps on how the complainant described her assailant to the good Samaritan and how the good Samaritan came to the conclusion that it was the Appellant who had defiled the complainant, thus leading to the arrest. It is the finding of the Court that the need for identification parade was paramount for the victim to properly identify her perpetrator and in the absence of that it is found that the conviction of the Appellant was unsafe for falling short of proper identification of the Appellant.

29. Having re-evaluated and re-appraised all the evidence on record afresh, the Court concludes that the conviction was unsafe. The prosecution failed to prove the age of the victim and the positive identification of the Appellant. It failed to prove its case against the Appellant beyond reasonable doubt as required by law.

30. Accordingly, for the reasons set out above, I allow the appeal, quash the conviction and set aside the sentence imposed. The Appellant is set at liberty unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 6TH DAY OF OCTOBER,2023PATRICK J. O. OTIENOJUDGEIn the presence of:The Appellant in personMs. Chala for the ProsecutionCourt Assistant: Polycap Mukabwa