[2022] KEHC 15782 (KLR)

Omari v Republic (Criminal Appeal E017 of 2021) [2022] KEHC 15782 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15782 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Appeal E017 of 2021

RL Korir, J

December 1, 2022

Between

Fred Omari

Appellant

and

Republic

Respondent

(From the Conviction and Sentence in Sexual Offence Case Number 17 of 2020 by Hon. Jackson Omwange in the Magistrate’s Court at Sotik)

Judgment

1. The Appellant was convicted by Hon J Omwange, Senior Resident Magistrate for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The particulars of the Charge were that on March 10, 2020 in [Particulars Withheld] Sub County, within Bomet County, he intentionally caused his penis to penetrate the vagina of IM, a child aged 15 years.

2. The Appellant also faced an alternative Charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the alternative Charge were March 10, 2020 in [Particulars Withheld] Sub County, within Bomet County, he intentionally and unlawfully touched the vagina of IM, a child aged 15 years with his penis.

3. The Appellant pleaded not guilty to the Charges before the trial court, and a full hearing was conducted. The prosecution called six (6) witnesses in support of its case.

4. At the close of the prosecution case, the trial court ruled that a prima facie case had been established against the Accused and he was put on his defence.

5. At the conclusion of the trial, he was convicted of the main Charge and sentenced to serve 20 years in prison.

6. Being dissatisfied with the Judgment, the Accused appealed to this court. His homemade Memorandum of Appeal filed on August 18, 2022 raised grounds reproduced verbatim as follows:-i.That, I pleaded not guilty at the trial and still maintain the same.ii.That the trial magistrate erred in law and in fact by depending on contradictory evidence to sentence the Appellant.iii.That the trial magistrate erred in law and in fact by convicting the Appellant on the evidence of witnesses that was neither consistent nor corroborated.iv.That the trial magistrate erred in law and fact by convicting the Appellant on charges that did not meet the required standard of convicting.v.That the trial magistrate erred in law and in fact in dismissing my plausible defence.vi.That I wish to be present during the hearing of this Appeal.

The Prosecution’s Case. 7. It was the Prosecution’s case that the Accused defiled the minor IM on March 10, 2020. The complainant IM (PW1) testified that on the material day, she went out of their house for a short call around 10 pm and found the Accused at the gate with a phone. That the Accused then held and pulled her towards his house which was about 50 meters from their house.

8. PW1 testified that the Accused threatened to kill her if she screamed. It was PW1’s further testimony that the Accused pushed her to his bed and begun undressing her. PW1’s testified that the Accused increased the volume of his music system, then removed his clothes and inserted his penis into her vagina.

9. It was her testimony that her uncle, KMM in the company of other people came to the Accused’s door and she hid under the bed out of fear. That the Accused took a panga and opened the door. It was her further testimony that they were then arrested and assaulted and thereafter taken to Kapkemut Police Station then Mogogosiek Police Station and thereafter she was taken for medical attention.

10. PW2 (KMM) testified that on the material day, he was asleep in his house when his two young children woke him up to telling him that PW1 was in their room. That when he confirmed that PW1 was missing, he woke up his neighbours and begun looking for her. Their search targeted the houses of unmarried men.

11. It was PW2’s testimony that he found the Accused and PW1 in the 4th house. That the Accused opened the door and came out armed with a panga. They arrested him and escorted him to Kaptengut Police Station. PW2 stated that PW1 told him that the Accused had sex with her.

12. TOS (PW3) testified that on the material day at around 12. 30 am, PW2 knocked on his door and informed him that one of his children was missing. That they began looking for PW1 and that they found her in the Accused’s house.

13. It was PW3’s testimony that he peeped through the Accused’s house and saw the Accused dressing up and PW1 under the bed. That the Accused opened his door and came out armed with a panga and a stick. It was his further testimony that they arrested the Accused and called the Assistant Chief. The Accused was later taken to Kaptenyek Police Post.

14. No 2xxxx0 PC Opportune Gathoni (PW4) testified that she was the Investigating Officer in this case. That on the material day, the Accused and PW1 were brought to the station from Kaptengwek on an allegation of defilement. That she took PW1 for a medical examination and treatment. She produced PW1’s Birth Certificate as PExh 1. PW4 was thereafter stood down to enable her retrieve Treatment Notes for the Accused.

15. PW5 (Daniel Too) testified that he was a clinical officer at Mogogosiek Health Centre where he had worked for over 7 years. It was his testimony that he examined PW1 on March 20, 2020 and found that PW1 had suffered soft tissue injuries, a reddened left eye and a swollen face. That there were no significant findings upon genital examination. It was his further testimony that the hymen was broken but it was longstanding and that if the parties used protection in a consensual sexual act, there would still be no positive findings.

16. It was PW5’s testimony that there was no evidence of defilement. He produced the Post Rape (PRC) Form marked as P.Exh 2, P3 Form marked as PExh 3 and Treatment Notes from Mogogosiek Health Centre marked as PExh 4.

17. No 9xxx8 PC Linet Nyagwo ,(PW6) testified that she was the current Investigating Officer in this case having replaced and taken over fromPW4. She confirmedPW4’s signature on her statement and the same was produced and marked as PExh 5. It was PW6’s testimony that she took over the file and did not conduct an independent investigation.

The Appellant’s Case. 18. The Appellant elected to give sworn evidence with no witnesses. He testified that he was a casual worker. That on the material day, he was asleep in his house when PW2, PW3 and two other people woke him up and asked him about a girl who had disappeared. He said that after he was arrested, PW2 went aside with a police officer.

19. It was the Accused’s testimony that on the following day he was taken to the hospital at Mogogosiek together with PW1. The Accused stated that he did not commit the offence and that he was framed by PW2 a fellow casual as they had a work related grudge.

The Appellant’s Submissions. 20. In this appeal, the Appellant submitted that he was framed by the prosecution’s witnesses. It was his submissions that witnesses should not create an impression to the court that they are not straight forward persons or of doubtful integrity. That such witnesses and their evidence was unreliable. 21. The Appellant submitted that PW2 did not want him to work at the company as he was a hardworking employee and was trusted by their employer. That PW2 conspired to fix him.

22. The Appellant further submitted that the clinical officer found that there was no evidence of defilement. That the hymen was broken and long standing and that if parties had consensual sex with protection, one would not find any positive findings in an examination.

23. It was the Appellant’s submission that the prosecution failed to call all the relevant witnesses i.e. Desyline, Amos Ndege and the Assistant Chief. That the trial court ought to have drawn an adverse presumption against the prosecution for failing to call all witnesses who were alleged to live in the same plot. He relied on the case of Bukenya v Uganda (1972) EA 549

The Prosecution’s/respondent’s Submissions. 24. The Respondent submitted that the ingredients of the offence were proved. Regarding age, they submitted that the victim’s Birth Certificate produced in the trial court as an exhibit proved that she was 15 years old.

25. Regarding penetration, the Respondent submitted the Accused took PW1 to his house, undressed her and inserted his manhood into her vagina and had intercourse with her. That although the trial court suggested that the sex was consensual, it was their submission that PW1 was a minor and was therefore incapable of giving consent.

26. The Respondent submitted that the Appellant was positively identified. PW1 had testified that she used her torch to identify the Appellant. That PW2 and PW3 identified the Appellant as Fred Omari.

27. This being the first appellate court, I have a duty to re-evaluate the evidence on record. The Court of Appeal in the case of Abok James Odera T/A AJ Odera & Associates V John Patrick Machira T/A Machira & Co Advocates (2013) eKLR, restated this duty as follows:-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way”.

28. I have gone through and given due consideration to the trial court’s proceedings, the Petition of Appeal filed on May 25, 2021, the Appellant’s Written Submissions filed on August 18, 2022 and the Respondent’s Written Submissions filed on September 21, 2022. The following issues arise for my determination:-i.Whether the Prosecution proved its case beyond reasonable doubt.ii.Whether the Defence places doubt on the Prosecution case and,iii.Whether the Sentence was lawful and just.iv.Whether the Prosecution proved its case beyond reasonable doubt.

29. It is trite law that for the offence of defilement to be established, the age of the victim, penetration and positive identification or recognition of the offender must be proved.

30. The Accused was charged with defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No 3 of 2006. Section 8 (1) of the Act states that any person who commits an act which causes penetration with a child is guilty of an offence of defilement. A child is defined in the Children’s Act No 8 of 2001 as any human being under the age of eighteen years.

31. The importance of proving age was underscored by the Court of Appeal in the case of Hadson Ali Mwachongo vs Republic (2016) eKLR,as follows:-“The importance of proving the age of the victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that 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 the victim. In Alfayo Gombe Okello vs Republic Cr App 203 of 2009 (Kisumu) this Court stated as follows:-In its wisdom, Parliament chose to categorize the gravity of that offence on the basis of age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. This must be so because dire consequences flow from proof of the offence under section 8(1)”.

32. Similarly in the case of Eliud Waweru Wambuivs Republic (2019) eKLR, the Court of Appeal reiterated that:-“There is no doubt that in an offence such as faced the appellant, indeed in most of the offences under the Act where the age of the victim determines the nature of the offence and the consequences that flow from it, it is a matter of the greatest importance that such age be proved to the required standard, which is beyond reasonable doubt.”

33. In this case, PW4 produced a Birth Certificate (PExh1). The Birth Certificate indicated that PW1 was born on November 9, 2005. The authenticity of the Birth Certificate was not challenged during the trial. In fact the Accused chose not to cross examinePW4 at all. I therefore find that at the time of the alleged offence, PW1 was aged between 14-15 years of age. Indeed the trial court was right when it stated in its judgment that PW1 was 14 years and 4 months at the time of the offence.

34. With regard to the issue of identification, the Court of Appeal in the case of Cleophas WamungavsRepublic(1989) eKLR expressed itself as follows:“Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant wholly depends or to a great extent on the correctness of more identifications of the accused which he alleges to be mistaken, the court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification”.(See also and Rvs Turnbull (1977) QB 224 Reuben Lukuru vs Republic (2019) eKLR)

35. In this case, the Appellant did not suggest that he was mistakenly identified rather he denied that he penetrated the victim and that he was framed.

36. PW1 testified that on the material day, he identified the Appellant using a torch that she had. PW1 also stated that their house and that of the Accused was about 50 meters apart which then indicated that they were neighbours. This was therefore a person very well known to her. The evidence of PW1 also revealed that the Accused engaged with her when he promised to buy her pants and clothes. It is salient to note that PW1 positively identified the Accused in the dock.

37. Additionally, PW2 and PW3 placed the Accused and PW1 in the Accused’s house as they found them together while conducting their search for PW1. PW2 and PW3 stated that they knew the Accused as a neighbour and that they were workmates. In his testimony, the Accused said that he did not have any grudge against PW2, but that PW2 did not want him to work at the company (Maina’s place). It is also important to state that PW2 and PW3 positively identified the Accused in the dock. It is my finding therefore that the Accused was positively identified by PW1, PW2 and PW3. He was their neighbour and the victim was found hiding under his bed.

38. The final ingredient is Penetration. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of genital organs into the genital organs of another person. In the case of Ee vs Republic (2015) eKLR, Riechi J stated that:-“An important ingredient of the offence of defilement is that there must have been penetration. Penetration or act of sexual intercourse has therefore to be proved to sustain a charge of defilement”.

39. The Court of Appeal expressed itself in John Irunguvs Republic (2016) eKLR as hereunder:-“Thus, for purposes of sexual assault, the penetration is not limited to penetration of genitals by genitals. It extends to penetration of the victim’s genital organs by any part of the body of the perpetrator of the offence, or of any other person or even by objects manipulated for that purpose.”

40. In the case of Bassita vs Uganda SC Criminal Appeal Number 35 of 1995, the Supreme Court held that:-“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not a hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt”.

41. PW5 who was the clinical officer at Mogogosiek hospital testified that when he examined PW1, he did not find any evidence that there was defilement. He further testified that the hymen was broken but it was long standing.

42. A broken hymen does not conclusively prove penetration unless there is evidence that the breaking of the hymen was caused by the act of the Accused. The Court of Appeal In PKW vs Republic(2012) eKLR stated:-“In their analysis of the evidence on record, the two courts below do not seem to have directed their minds to these details. They appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified" Is hymen only ruptured by sexual intercourse"Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse…….”

43. PW5 produced Treatment Notes from Mogogosiek Health Centre marked as P Exh 4. The same was stamped on March 10, 2020 which was the material day. The Notes indicated that upon examination of PW1, it was found that she had no bruises or lacerations on the vagina as the vagina was intact. That there was also no fresh blood.

44. The P3 Form (P Exh 3) revealed that the labia minora and majora of the vagina was intact and that there was no discharge from the vagina. The P3 Form also indicated that the hymen was not recently broken. The Post Rape Care Form (P Exh 2) that was filled on the material day confirmed the findings contained in the P3 Form. PW5 opined that there was no penetration.

45. The medical evidence above and findings of PW5 being expert evidence, must be considered alongside other evidence. In this case there is no doubt that the complainant was found inside the Appellant’s house in the dead of the night. She hid under the bed when her father (PW2) in the company of his neighbour (PW3) knocked at the door. The inescapable question is: had they had sexual intercourse or were they rudely interrupted before they engaged?

46. The P3 Form and the Post-Rape Care Form and expert opinion of PW5 confirms beyond a doubt that the victim had long lost her virginity. She may have been defiled by the Appellant earlier, or by another person. It is possible therefore that on the material night the Appellant may have defiled her again. This is because in the opinion of PW5, the absence of any lacerations or freshly broken hymen would not rule out sexual intercourse or defilement in this case particularly if they used protection.

47. It is my finding therefore that the medical evidence did not prove to the required legal standard, the fact of penetration on the material date. The evidence was open to more than one conclusion.

48. I now turn to the evidence of the complainant to see if the court could convict on her sole evidence. Section 124 of the Evidence Act provides:-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 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.

49. I have looked at the trial record. The trial court did not record the reasons why he believed the complainant. I therefore revisit her evidence in order to arrive at my own conclusions on its credibility.

50. The Complainant testified that she was grabbed by the Appellant on her way from the toilet and pushed inside his house. He threatened her once inside the house. He raised the volume of his radio. He first undressed her, then undressed himself and penetrated her. Then they heard her uncle PW2 at the door and she quickly hid under the bed.

51. PW1’s evidence portrayed an embarrassed teen who was caught having relations with an older man. What else could explain her hiding under the Accused’s bed at the sight of her uncle at the door? There is a possibility that there was an on –going sexual relationship between the Appellant and the complainant, only that this time round, they met the proverbial 40th day. This explains why the medical evidence concluded that there was earlier penetration. It is clear to this court that PW1 was not entirely truthful in her evidence. In the absence of conclusive medical evidence on penetration I would consider it unsafe to convict on her sole evidence.

52. Having established that there was no proof of actual penetration on the material date as noted above, the next question as to whether the Appellant ought to be convicted of the alternative charge, which is committing an indecent act with a child. Indecent Act is defined in the Sexual Offences Act as follows:-“indecent act” means an unlawful intentional act which causes-(a)Any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration.(b)Exposure or display of any pornographic material to any person against his or her will.”

53. Section 11(1) of the Sexual Offence Act provides as follows:-Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.”

54. This court is entitled to conclude from the circumstantial evidence that the Appellant must have committed an indecent act with the victim. However, upon review of the evidence, I find that the circumstantial evidence was too weak to sustain a conviction. Beyond the fact that the complainant was inside the house of the Appellant and hid under the bed when they were smoked out, there is no evidence to sustain the alternative charge which as the law requires must be proved beyond reasonable doubt.

55. In the final analysis, it is my finding that the evidence creates a very strong suspicion that the Appellant defiled the complainant. The evidence also suggests that he may have defiled her many times before. It is the law however that suspicion however strong cannot found a conviction. In SawevR (2003) KLR 364, The Court of Appeal stated:-“Suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.”

56. I set aside the conviction and quash the sentence. The Appellant is set at liberty forthwith unless otherwise lawfully held.

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 1STDAY OF DECEMBER, 2022. ..........................R. LAGAT-KORIRJUDGEJudgment delivered in the presence of the Appellant (acting in person) Mr. Njeru for the Respondent and Kiprotich (Court Assistant)