[2017] KEHC 1986 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CRIMINAL APPEAL NO. 34 OF 2017

OTIENO COSMAS AYORA....……...……….APPELLANT

VERSUS

REPUBLIC…………………………….…….RESPONDENT

(Appeal against Conviction and Sentence imposed in Sexual Criminal Case Number 2 of 2017 in theSenior Resident Magistrate’s Court atTamuby Hon. E.M.Onzere(SRM) on 12. 5.17)

JUDGMENT

The Trial

The AppellanthereinOTIENO COSMAS AYORAhasfiledthisappealagainstsentence and conviction ona chargeof attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge are that

On 10. 1.17 at[particulars withheld]in Muhoroni Sub-County in Kisumu County intentionally attempted to cause your genital organ namely penis to penetrate the genital organ namely vagina of M.A a girl child aged 17 years

In the alternative count; the appellant was charged with indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the charge are that

On 10. 1.17 at[particulars withheld]in Muhoroni Sub-County in Kisumu County unlawfully and intentionally caused your genital organ namely penis to touch the genital organ namely vagina of M.A.O a girl child aged 17 years

Theprosecutioncalleda totaloffour (4)witnessesinsupportoftheir case PW1 M.A.O the complainant recalled that on the material date at about 1. 10 am, she was sleeping in their kitchen together with her sister and brother who were on a separate bed. That appellant went into the kitchen by cutting the iron sheet wall with a knife and when she woke up, she found him lying on top of her without his trousers and underwear. That she screamed and got hold of the appellant and her sister and brother woke up and also screamed. That her phone torch which was on enabled her to see the appellant and the knife he was holding. That appellant managed to escape and left his shoes, trousers and underwear in their kitchen. That she reported the matter to her parents who in turn reported the matter to a village elder the following morning. That the village elder informed them that the appellant had already been arrested and she went to the police station and recorded her statement. She said she used to see appellant pass by their home.

PW2 H A, complainant’s sister recalled that she was sleeping in their kitchen with complainant and brother on the material date. That she was awoken by the complainant’s screams at about 1. 00 am and she saw complainant struggling with someone. That her sister put on her phone torch and she identified appellant who was armed with a knife because she used to see him loiter in the village. She confirmed that appellant left his clothes in their kitchen.

PW3 Gilcrest Otieno Sombe, assistant chief Koru Sub-location recalled that he rescued the appellant from a crowd that threatened to lynch him for allegedly attempting to defile a minor on the night of 10. 1.17. He produced a blue underwear and cream trousers as exhibits 1 (a) and (b) respectively which the complainant alleged were left at the scene of crime by the appellant.

PW6 Sgt Dan Omachode the investigating officer received the appellant from PW3 and after investigating complainant’s report that appellant had attempted to defile her charged him. He produced complainant’s age assessment report PEXH. 2 which shows that she was 17 years old.

At thecloseoftheprosecutioncase,theappellantwasruledtohaveacasetoanswer andwasplacedonhisdefence. Hegaveunsworndefenceinwhichhedeniedthecharges. He said he was arrested by village elders who handed him over to the chief and later to the police and he was charged with an offence he did not commit.

In a judgmentdeliveredon 12. 5.17, the appellant was convicted and sentenced him to serve 10 years imprisonment.

The appeal

Aggrieved by this decision, the appellant lodged the instant appeal. In his Petition of Appeal filed on 26th May, 2017, the appellant set out 5 main grounds of appeal to wit:-

1. The trial magistrate erred in law and in fact in convicting and sentencing him on insufficient evidence

2. No medical evidence was adduced to link him to the offence

3. The prosecution case was marred with contradictions and inconsistencies

4. The trial magistrate erred in law and in fact in dismissing the defence

5. That the prosecution failed to comply with Article 50(2)(j) of eth Constitution

When the appeal came up for hearing on 3. 10. 17, the appellant relied wholly on his grounds of appeal and submissions filed on 2. 10. 17. Ms. Wafula, learned counsel for the state opposed the appeal on the ground that the appellant was properly identified by PW1 and PW2 by means of a torch light.

Thisbeingacourtoffirstappeal,IamguidedbytherulingoftheCourtofAppealin thecaseof OKENOVS.REPUBLIC[1972]E.A.32,whereitheldthat:-

“It is the duty of a first appellant court to consider the evidence,evaluate iti tself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld”

The trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and this court is in dealing with this appeal obligated to give allowance for that.

a. Fair hearing under Article 50(2)(j) of the Constitution

Article 50 (2) everyaccused person has the right to a fair trial, which includes the right—

(j)tobeinformedinadvanceoftheevidencetheprosecutionintendstorelyon,andtohavereasonableaccesstothatevidence;

I have perused the record of the trial court and the appellant did not raise the issue of statements either during trial or when he made his submissions. I therefore find no merit in this ground of appeal.

b. Medical evidence

This is a case of attempted defilement and medical evidence was not necessary and this ground too has to fail.

c. Contradictions and inconsistencies

I have perused the record of the trial court and I have not seen any contradictions and inconsistenciesand this ground too has to fail.

d. Insufficient evidence

PW1 and PW2 told court that they identified the appellant using the light of a phone torch. The incident occurred about 1. 00 am.

In the case of R v Turnbull, (1976) 3 All ER 551,Lord Widgery CJ observed

“the quality of identification evidence is critical; if the quality is good and remains good at the close of the defence case, the danger of mistaken identification is lessened, but the poorer the quality, the greater the danger”.

In the case of Wamunga –vs- R, [1989] KLR 424 the Court of Appeal while dealing with the complexities of an identification of an assailant stated as follows;-

“It is trite law that where the only evidence against a defendant is evidence of identification of recognition, a trial Court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of a conviction”.

In a recent case of John MuriithiNyagah v Republic [2014] eKLR, the Court of Appeal held:-

“in testing the reliability of the evidence of identification at night, it is essential to make an inquiry of the relevant circumstances such as the nature of the light, the strength of the light, its size, its position relative to the suspects etc.”

In this case, the learned trial magistrate fell into error when she failed to make an inquiry of the relevant circumstances relating to thestrength of the phone torch light, its size and its position relative to the suspects. Further to the foregoing; the complainant and her sister were not called upon to identify the clothes allegedly left in their house by the suspect thereby failing to link them to the appellant.

Decision

In view of the foregoing analysis, I reach a conclusion that the case against the appellant was not proved beyond any reasonable doubt rendering the conviction unsafe. The appeal is thus allowed. The conviction is hereby quashed and the sentence is set aside. It is ordered that the appellant be set at liberty unless otherwise lawfully held.

DATED AND DELIVERED THIS 16th DAY OF November ,2017

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant - Felix

Appellant - Present

For the State - Ms Wafula