[2022] KEHC 3039 (KLR)

Onzere v Republic (Criminal Appeal 180 of 2018) [2022] KEHC 3039 (KLR) (13 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3039 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal 180 of 2018

WM Musyoka, J

May 13, 2022

Between

Kenneth Injairu Onzere

Appellant

and

Republic

Respondent

(This was an appeal from judgment and decree of Hon. WK Cheruiyot, Senior Resident Magistrate, in Vihiga PMCSO No. 6 of 2017, of 20th November 2018)

Judgment

1. The appellant had been charged before the primary court of the offence of sexual assault, contrary to section 5(1) (a(i)(2) of the Sexual Offences Act, No. 3 of 2006. The particulars were that on 13th February 2017 in Central Maragoli Location, within Vihiga County, he had unlawfully used his hands to penetrate the vagina of CM, a child aged six years old. There was an alternative charge, under section 11(1) of the Sexual Offences Act, of committing an indecent act with a child. The particulars being that at the same place and time, the subject of the main count, he had intentionally and unlawfully touched the vagina of CM, a child of six years.

2. He pleaded not guilty to the two counts, and a trial was conducted. Five prosecution witnesses testified. The complainant, PW1, she testified that she was going home from school on 12th February 2017 at 1:00 PM, when she met the appellant, who she knew as Baba O. He told her to go home and change from her uniform. She did so, and changed into causal clothes, and went to the home of the appellant. He put her on a chair, removed her underpants halfway to her knees, and inserted his fingers into her vagina. She said that he was alone at the home. Subsequently, her grandmother came and took her home. She took her to a hospital and police station. At the hospital, a doctor examined her and filled some papers. At the police station, the police asked her some questions. She pointed at the appellant at the dock as the person who had inserted his fingers into her vagina. PW1 was not cross-examined, according to the court record.

3. PW2, GM, she testified that she had heard PW1 tell her brother that she was going to the home of the appellant who had called her. When she was told that the PW1 had left, she followed her after five minutes. When she got to the home of the appellant, the doors were closed except for those to the kitchen. She called out, but no one answered. She went to the kitchen, and on approaching the door, she saw the appellant seated on a table chair. The underpants of PW1 had been removed up to the knees, and he was holding PW1 by her private parts. He had also removed his penis. She said PW1 was seated on a chair, and the appellant was kneeling. She asked the appellant what he was doing, whereupon he said he had called PW1 to give her pawpaw. PW2 then took the child and they went away. She went to report to nyumba kumi, and thereafter to the Gisambai Administration Police Post, from where she was sent to Mbale Hospital. As it was late, she opted to go to Mbale the next morning. At the hospital, PW1 was checked and treated. P2 then took her to the Vihiga Police Station, and, thereafter, to Mbale Hospital again for the P3 Form. She stated that the child was six years old.

4. PW3, No. 62215 Police Corporal Edwin Nyongesa, was in the arresting party that proceeded, on 6th February 2017, at 4. 00 AM, to arrest the appellant. They were led by PW2. PW4, Wangulu Bethsheba, was a clinical officer, who filled the P3 Form. She was also the person who treated the child. She found a laceration on both her labia majora and labia minora. She concluded that there was invasive assault and sexual assault. She stated that the child was taken to her on 15th February 2017, and that was also when she filled the P3 Form. She was not accompanied by a police officer. The P3 Form had number OBxxxx. She said that the offence occurred on 14th February 2017, then again she said the investigating officer said that the offence occurred on 13th February 2017. She asserted that the history was that a finger was inserted, and there was reddening on the labia major and minor. PW5, No. 75299 Police Senior Sergeant Margaret Chepkoech, of the gender desk, Vihiga Police Station, was the investigating officer. She testified that she received a report of the sexual assault on 15th February from PW2. She recorded a statement from PW1, and issued the P3 Form, and escorted PW1 to the Mbale Rural Hospital, where she was examined. Sexual assault was established. The accused was then arrested. She stated that she was given the treatment booklet on 13th February 2017. She detailed all the steps that she took in the course of the investigations. She stated that the child was treated on 14th February 2017, but the matter was reported to the police on 15th February 2017.

5. The appellant was put on his defence. He testified on oath. He stated that PW1 visited him on the material day, and he served her pumpkin. Later PW2 came and took her away, his wife later came home, and told her that PW2 was alleging that her child had been defiled. He denied indecently assaulting the child.

6. In the judgment, the trial court framed three issues, about the age of the child, penetration and identification of the perpetrator, and found that all were established. The court found the appellant guilty as charged, and convicted him. He was subsequently, sentenced to the minimum penalty of ten years in jail.

7. The appellant was aggrieved, and brought the instant appeal, founded on several grounds. He states that the court erred in convicting him of sexual assault, the sentence imposed out was excessive, the evidence and his submissions were not properly considered, and the evidence did not support the conviction.

8. The appellant has filed his written submissions. He has submitted around corroboration, inconsistencies on the date when the offence was allegedly committed, some witnesses not being called, the matter being reported to the police six days after the event and the P3 Form being filled the same day and the testimony of PW3 contradicted that of the victim.

9. On corroboration, I find that the testimony of PW1 is corroborated on material particulars by PW2. She found PW1 at the home of the appellant, with her pants removed up to her knees. She saw him holding PW1 by her private parts. She then took the child away to their home, and later to hospital and police station. PW4 noted a laceration on the private parts of PW1, and concluded that there was an invasive assault and sexual assault. PW5 was told by PW1 about how the appellant had sat her on a chair, removed her underwear halfway, and inserted fingers into her vagina, and how PW2 then came and took her away. All these bits of evidence are corroborative of the testimony of PW1.

10. On inconsistencies, on the date when the incident happened, the charge is that it happened on 13th February 2017. PW1 said it was 12th February 2017. PW2 talked of 13th February 2017. PW4 talked of the child being brought to her on 15th February 2017, for the purpose of filling of the P3 Form. She said the P3 Form bore Police Occurrence Book number OB/xxxx, saying that according to the investigation officer the offence was committed on 13th February 2017. She said that the offence occurred on 14th February 2017. PW5 said that he got report of the incident on 15th February 2017, and that he was given the treatment notes on 13th February 2017. He said the child was treated on 14th February 2017. The appellant himself said that the child was at his home of 13th February 2017, and that was the day when his wife came home saying that PW2 was saying that PW1 had been defiled.

11. I have compared the typewritten record with the handwritten one. According to the handwritten notes of the trial court, PW1 said that the incident was on 13th February 2017, and so did PW2. The critical witnesses were the complainant, PW1, and PW2. These were the persons at the scene, and their evidence on the date when it happened flows. It is the same date that the appellant said PW1 was at his home, and that PW2 also came and found them. PW2 and the appellant talk of PW1 being at the home of the appellant at 4. 30 PM and 4. 00 PM, respectively. PW1 did not mention the time when she was at the home. The typewritten notes refer to her saying that she was in school at 1. 00 PM, but that timing is not clear from the handwritten notes. Either way, there is adequate evidence that she was at the home of the appellant in the afternoon of 13th February 2017. I am mindful of the fact that she was a Standard One pupil. The other witnesses were not at the scene, and their inconsistencies as to when the incident happened would be inconsequential.

12. On some witness not being called, the positon in law is that the prosecution is not bound to call every single person who might have been involved in the matter, regardless of how insignificant their role was. The prosecution is bound to call enough witnesses to prove their case beyond reasonable doubt. There is no particular number of witnesses who ought to be called. In this case, the appellant argues that after PW2, allegedly went to a women’s meeting, where she reported the incident, in the presence of some women. He says that those women were not called as witnesses. They would have been minor witnesses, as they were not at the scene. They would have given hearsay evidence, and there is nothing to suggest that they took action of any form after they allegedly got that information, which they would have come to convey to the court. The failure to call them was not fatal.

13. On the incident being reported on 6th February 2017, and, therefore, six days before it happened, I note that the appellant is referring to the testimony of PW3, who was not the investigating officer but the arresting officer. PW5 was the investigation officer. She said that the report was made on 15th February 2017, and the arrest was effected on 16th February 2017. The reference to 6th February 2017 was erroneous and was not material.

14. On the testimony of PW4 that the sexual organ of PW1 was intact, and, therefore, it contradicted her evidence that the appellant had inserted his fingers into her vagina, what PW4 told the court was that the external genital area looked normal, but there were laceration in the labia. That is not the same as saying that PW1’s genitals were intact.

15. I am persuaded that the trial court properly evaluated the evidence that was placed before him, including the defence, and properly convicted the appellant of the offence of sexual assault contrary section 5(1) (a) (i) and (2) of the Sexual Offence’s Act. Overall, I find no merit in the appeal, and I hereby dismiss the same. I consequently, affirm the conviction. The minimum penalty for the offence is ten years in jail, and that is what the trial court awarded, and I shall, therefore, confirm the sentence.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 13THDAY OF MAY, 2022W MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Kenneth Injairu Onzere, the appellant, in person.Mr. Chigiti, instructed by the Director of Public Prosecutions, for the respondent.