[2022] KEHC 13433 (KLR)

Onyango v Republic (Criminal Appeal E018 of 2021) [2022] KEHC 13433 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13433 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal E018 of 2021

RN Nyakundi, J

October 5, 2022

Between

Victor Ochieng Onyango

Appellant

and

Republic

Respondent

(An appeal against both conviction and sentence from the judgment of Hon. E.Kigen (SRM) in Eldoret Criminal Case No. 26 of 2018 dated 12th March, 2021)

Judgment

1. The appellant was charged with the offence of defilement contrary to section 8(1) a read with 8(2) of the Sexual Offences Act No 3 of 2006

2. The particulars of the offence are that on the 27th day of 2018 at [Particulars Withheld] estate in Eldoret East sub county within Uasin Gishu the accused person intentionally and unlawfully caused his genital organ (penis) to penetrate the genital organ (vagina) of NJ a girl aged six years old.

3. The appellant was charged with the alternative charge if committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006.

4. The particulars of the offence are that on the January 27, 2018 at [Particulars Withheld] Estate in Eldoret East sub county within Uasin Gishu the accused intentionally and unlawfully caused his genital organ (penis) to penetrate the genital organ (vagina) of NJ a girl aged six years old.

5. The case proceeded to hearing where the prosecution called 5 witnesses. The appellant was convicted of the main charge of defilement sentenced to serve life imprisonment.

6. Being dissatisfied with the decision of the trial court the appellant instituted this appeal vide a petition of appeal and a memorandum of appeal filed on August 26, 2021. The grounds of the appeal are;1. That the Hon trial magistrate erred in matters of law and fact by failing to hold that the charge sheet was defective.2. That the Hon trial magistrate erred in matters of law and fact by basing (my) conviction on identification evidence that was not conclusively proved.3. That the Hontrial magistrate erred in matters of law and fact by failing to find that the burden of proof shifted from its back yard to the appellant.4. That the Hon trial magistrate erred in matters of law and fact by failing to find that the circumstantial evidence did not connect the appellant to the commission of the offence.5. That the Hon trial magistrate erred in matters of law and fact by failing to find that there were contradictions and inconsistencies in the prosecution’s case.6. That the Hon trial magistrate erred in matters of law and fact by failing to hold that penetration was not conclusively proved.7. That (I) am aggrieved the trial court erred in law and in fact by failing to observe that this matter was trumped up against the appellant.

Appellant’s Case 7. Counsel for the appellant filed submissions on February 23, 2022. He submits that there was blatant violation of the fundamental rights of the appellant evidenced in the proceedings that are contained between pages 15- 63 of the record of appeal. The proceedings were conducted in the English and Kiswahili languages which the appellant does not understand and he was therefore prejudiced from the outset. He contended that the question as framed on page 15 of the record of appeal lines 14, 15 and 16 is so vague that no answer could be given. In any event the record does not show in which language the question was asked in the first place. On the record of proceedings on January 31, 2018 at page 15 of the record of appeal, line 11 that the court had already presumed proceedings in English as interpreted into Kiswahili. The appellant was thus limited to these languages, and being unrepresented had no choice than to answer as directed or expected of him.

8. The trial court did not record the language in which the appellant cross examined PW 1 at page 22 line 9, PW 2 at page 24 line 6,PW 3 at page 43 line 8, PW 4 at page 48 line 8, or PW 5 at page 59 line 8 of the record of appeal. However, the trial court religiously recorded the English or Kiswahili languages in which the prosecution witnesses testified. An examination of the record also shows the limited words used in cross examination and in the defence. This can only mean that the prosecution witnesses were given a chance to testify in the languages of their choice while the appellant did not enjoy equal treatment.

9. He cited R A Aburili J in Siaya High Court Criminal Appeal No 34 of 2019 Muslim Odemba Hams A v Republic, R A Aburili J in Siaya High Court Criminal Appeal No 34 of 2019 Muslim Odemba Hams A v Republic and submitted that the test is not whether the trial court recorded the language of the trial but whether the language used the court and witnesses was understood by the accused (appellant). The appellant who speaks dholuo language did not understand the proceedings that were conducted in English and Swahili languages.

10. Learned counsel for the appellant submitted that the charge was clearly defective for failing to mention the month in which the alleged offence was committed. The learned trial magistrate failed even to look at the charge sheet that was before court and proceeded to hold a trial for the offence that allegedly took place on January 27, 2018, which was clearly not before him. Failure to mention the month on which the offence was allegedly committed was seriously detrimental and prejudicial to the appellant under undermined his fundamental rights enshrined under article 50 (2) (b) of the Constitution of Kenya 2010. At page 8 of the record of appeal of the said P3, the first line states, “examination on 28'1' December 2018 at 12:21 am” The last line of page 8 of the record of appeal indicated the date as January 29, 2018. Does this mean the child was examined by the doctor 11 months after the P 3 was filled? Could this be the reason the prosecution failed to fill in the month on which the alleged defilement occurred? He submitted that failure to mention the date on which an offence is committed is excusable but failing to indicate the month cannot be excused.

11. It is the appellant’s case that the trial court failed to identify the ingredients of the offence of defilement under section 8 (1) as read together with 8 (2) of the Sexual Offences Act. The prosecution did not allege in the charge sheet that the complainant was defiled on January 27, 2018. PW 1, 2,3,4 all referred to January 27, 2018 as the date when the alleged offence took place. The only prosecution witness who did not refer to this date was PW 5PC Erendi Wamalwa. In his evidence at page 52, 53 and 58,59 of the record of appeal, the investigating officer did not once mention the date on which the alleged offence is said to have taken place. Given that the charge sheet was prepared by police officers, could it be that this charge sheet was prepared by PW5 who had a problem determining when the alleged offence took place or whether it took place at all? This is further compounded by the medical examination report (P3) at page 8 of the record of appeal where it states that the examination, took place on December 28, 2018, which is 11 months after the date on which the learned trial magistrate stated to be the date on which the defilement allegedly took place.

12. The medical report relied upon by the court to conclude that there was defilement was a medical examination report (P3) filled byDr Temet on ,January 29, 2018 as at page 8 of the record of appeal. The first line states that the child was examined on December 28, 2018 at 12:21 am, 11 months after.

13. The said P3 also relied only on the history. The minor did not avail any clothing for examination (page 7 of the record of appeal) even though in her evidence she alleged to have had a wet panty. This panty would surface later and be taken to the government analyst for DNA analysis (page 12 of the record of appeal) The p3 was not based on any treatment records or discharge summary. In practice, P3 is not a standalone document but is based on actual injuries sustained and treatment, if any given. In this case there were no other treatment records save for the P3.

14. On page 46 of the record of appeal, the medical examination report produced as prosecution exhibit No 1 was produced by a student. The reason given for the absence of Dr Temet was that DrTemet was on a study leave. Section 33 of the Evidence Act cap 80 of the Laws of Kenya is clear that such a document could only be produced by someone else in cases where the maker of the document is dead, cannot be found, has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which in the opinion of the court would be unreasonable. The reason advanced by the prosecution was not sufficient to warrant the production of crucial medical evidence by an unqualified person. Further, prosecution exhibit 7, the report of the government analyst at page 12 of the record of appeal was produced by a police officer. At page 59 line number 3 and 4 of the record of appeal. The said report was produced under non-existing provision of law'. The prosecution applied for and the court allowed the investigating officer No xxxx PC Erendi Nasimiyu Mwamalwa to produce the report of the government analyst as exhibit No 7 under section 33 (1) of the Evidence Act, which is non-existent, and section 77 of the Evidence Act which the court allowed without summoning the government analyst under section 77 (3) of the said Evidence Act. This was prejudicial to the appellant.

15. The trial court failed to notice that the two minors gave contradictory evidence even though they were both present on the material day. PW 1 said she was alone when she met the appellant working as a casual labourer with another worker at a farm, refer to page 21 line 16 and 17 of the record of appeal. From her evidence, it seems there were only two labourers working on the farm. PW 2 on the other hand said at page 23 line 11,12,13,14 and 15 that she went to the farm in the company of PW1. PW2 also testified that there were people digging the farm, including the accused. It is not conceivable that the appellant could have pulled PW1 into a nearby farm to sexually violate her in the presence of so many farm labourers.

16. The police arrested two labourers. The appellant was not wearing an Orange trouser at the time of the arrest. According to PW' 5 whose testimony is at page 52 and 53 of the record of appeal, the two workers were both arrested and put in cells. The orange trouser and purple T- shirt were later recovered from the house. There is no evidence that they belonged to the appellant. Then she says the accused was identified. Both workers were called Ochieng and were cousins. PW 5 does not say how the appellant was identified given she did not hold any identification parade. There is no evidence from PW 1 or PW 2 that they had met the appellant previously. Prosecution exhibit No 7, the report of the government analyst is dated January 16, 2019, that is one year later and played no role in identification of the appellant.

17. The appellant further contended that PW 5 No xxxx PC Erend1 Nasimiyu Mwamalwa gave false and misleading evidence at page 53 line 12, 13 and 14 of the record of appeal to the effect that the appellant had another ongoing defilement case in Kakamega. The said witness did not provide the case number of the case referred to. The trial court while making its judgement wrote at page 72 line 4,5 and 6 of the record of appeal, “it is notable that the accused while on bond had gone ahead to commit such a similar offence in Kakamega. His acts cannot go unpunished. The accused is hereby sentenced to serve life imprisonment.

18. This evidence was a violation of section 34 of the Sexual Offences Act. The prosecution did not seek leave of the court to produce the alleged character evidence and the court did not exercise the circumspection outlined thereunder. As such the appellant who was unrepresented, suffered serious prejudice, as the trial court’s mind was fixed on convicting him. Nothing he could say in his defence counted.

19. In view of the grounds outlined, learned counsel for the appellant sought to have the appeal allowed.

Respondent’s Case 20. The respondent filed submissions on June 23, 2022. Learned counsel for the state Mr Mark Mugun submitted that for a charge of defilement, the Republic is duty bound to prove the following ingredients:a.Proof that the complainant was a minor;b.Proof of penetration;c.Positive identification of the accused as the person who caused penetration of the complainant’s genitalia.

i. Age of the complainant 21. The prosecution produced the complainant’s birth certificate as Exh 2. It indicates that the date of birth is December 22, 2011. Therefore, at the time the offence was committed, she had just turned 6 years old. The appellant did not challenge this evidence in cross-examination and neither did he adduce any evidence to the contrary when he tendered his sworn testimony. There wasn’t any inconsistency here.

ii. Proof of penetration 22. The prosecution proved this ingredient through medical evidence and the oral testimony of the complainant. From paragraph 1-4 of page 20, the complaint testified how the appellant took her to a farm and how he inserted his penis into her vagina. This evidence was corroborated by medical evidence of PW4, Dr Taban, who produced the P3 form as exhibit 1. She testified that when she examined the complainant’s genitalia she found that there were fresh hymeneal tears at 12 and 9 O’clock position, the vaginal walls were erythematous and that the posterior fourchette was reddened. These injuries are consistent with penetration and she concluded as such. There was no contradiction here.

iii. Positive identification 23. The complainant testified that she knew the appellant as a worker hired by her parents. She referred to him by his name, Victor (page 19 para 17). She also described him by the clothes he wore on the fateful day. PW2 similarly identified the appellant by his name and the clothes he wore that day (page 21 para 3-4. ) Her description matched that of the complainant. Another positive identification was made by PW3, the complainant’s mother who (on page 40 para 9,12 and 15) referred to the appellant by name. This is clearly a matter of recognition and not identification of a stranger. With regard to the weight to be attached in a case of recognition, he cited the case of Aniononi & others v Republic [1976-1980] 1566. The appellant was also positively identified by the fact that his own DNA was found on the complainant’s underwear and trousers. He referred the court to page 50, paragraphs 3-13 of the record of appeal. The DNA test results were produced as Exh 7. Under section 111 (1) of the Evidence Act, the burden of proof shifted to the accused to give a plausible reason why his semen was found in the complainant’s underpants. [See Douglas Thionao Kibocha v Republic [2009] eKLR] The appellant failed to avail any explanation as such it was very safe to conclude that the appellant was correctly and properly recognised as the perpetrator of the crime. The trial court cannot be faulted for convicting him on solid evidence.

24. Learned counsel for the respondent stated that section 8(2) of the Sexual Offences Act prescribes a sentence of life imprisonment for a person convicted of defilement of a minor aged under 11. Therefore, the mandatory life imprisonment is applicable in this case. The appellant has not advanced any valid reason why this honourable court should depart from the well-trodden path with regard to the sentence. The Republic prays that it is left undisturbed.

Issues For Determination 25. Upon considering the appeal, record of appeal and submissions of the parties herein, I have consolidated all the grounds and the following issues arise for determination;1. Whether the charge sheet was defective2. Whether the appellant was accorded a fair trial3. Whether the prosecution proved its case to the required standard

Whether The Charge Sheet Was Defective 26. Section 382 of the Criminal Procedure Code provides:Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”

27. In Isaac Omambia v Republic, [1995] eKLR the court considered the ingredients necessary in a charge sheet and stated as follows:In this regard, it is pertinent to draw attention to the following provisions of s. 134 of the Criminal Procedure Code which makes particulars of a charge an integral part of the charge: Every charge or information shall contain, and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence.”

28. In Peter Ngure Mwangi v Republic [2014] eKLR, the Court of Appeal quoted the Isaac Omambia case with approval and further stated that:A charge can also be defective if it is in variance with the evidence adduced in its support. Quoting with approval from Archbold, Criminal Pleading, Evidence and Practice (40th Edn), page 52 paragraph 53, this court stated in Yongo v R, [198] eKLR that:“In England it has been said: An indictment is defective not only when it is bad on the face of it, but also:(i)when it does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offences not disclosed in that evidence or fails to charge an offence which is disclosed therein,(ii)when for such reason it does not accord with the evidence given at the trial.”

29. The appellants’ contention is that the charge sheet was defective as it did not contain the month of the offence. I have perused the file and the charge sheet does not contain the month the offence occurred. This begs the question as to whether this is a fatal defect. In order for the defect to be fatal it must occasion an injustice on the appellant. It is my view that the defect is not fatal as the alternative charge states the date on which the offence occurred. This limb of the application therefore fails.

Whether the Appellant was Accorded a Fair Trial 30. Learned counsel for the appellant contended that the trial court violated his rights as the proceedings were conducted in English and Swahili, languages which the appellant does not understand. He pointed out that the trial court even failed to record the language in which it examined the appellant cross examined PW1,PW2,PW3 and PW4. It was his case that the appellant did not enjoy equal treatment.

31. A perusal of the court record reveals that the appellant chose Kiswahili as the language he understood. This contradicts the appellants’ advocates contention that the accused did not understand any of the languages. The record shows that the accused participated in the cross examination of the prosecution witnesses and therefore one is left to wonder how he did this without understanding any of the language use.

32. It is my view that this ground of appeal is an afterthought and fails in its entirety.

Determination 33. In determining this appeal, this court being a first appellate court takes into account the principles laid down in the case of Okeno v Republic(1972) EA 32 where the Court of Appeal for Eastern Africa stated that:An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya v R 1975) EA 336 and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M Ruwala v R[1957] EA 570. It is not the junction of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see (Peters v Sunday Post 1978) EA 424. ”

34. The ingredients of the offence of defilement were stated in the case of George Opondo Olunga v Republic [2016] eKLR, as; identification or recognition of the offender, penetration and the age of the victim.

Identification 35. The complainant knew the appellant as he was a worker hired by her parents. The identification was by way of recognition. In Anjononi and others v The Republic[1980] KLR;…………………This, however, was a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification inSiro Ole Giteya v The Republic (unreported.)”

36. It is therefore clear that the element of identification was satisfied to the required standard. Further, theDNA evidence produced as exhibit 7 was found on the complainants’’ underwear and trouser conclusively determining the issue of identification.

Penetration 37. The evidence of PW4, Dr Taban who produced the P3 form as exhibit 1 corroborated the testimony of the complainant that there was penetration as the injuries were consistent with penetration.

Age of the complainant 38. The prosecution produced the complainants’ birth certificate as exhibit 2. It indicated that the date of birth was December 22, 2011. The offence took place on January 27, 2018. The complainant was therefore 6 years of age at the time of the offence.

39. The upshot of the foregoing is that the elements of the offence of defilement were proven beyond reasonable doubt.

40. In the premises, I find that the appeal lacks merit and it is hereby dismissed.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 5TH DAY OF OCTOBER, 2022. ............................R. NYAKUNDIJUDGECoram: Hon. Justice R. NyakundiMr Mugun for the stateSospeter & Co. Adv for appellant