[2022] KEHC 13395 (KLR)

Otieno v Republic (Criminal Appeal E100 of 2021) [2022] KEHC 13395 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13395 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Appeal E100 of 2021

JM Mativo, J

October 6, 2022

Between

Simon Ooko Otieno

Appellant

and

Republic

Respondent

(An appeal against Judgement, conviction and sentence passed in SO No. 108 of 2019, at Mombasa, R v Simon Ooko Otieno, delivered by Hon. C.A. Ogweno, R.M. on 25. 11. 2021)

Judgment

1. The appellant seeks to overturn the conviction and sentence of ten years imprisonment imposed against him in CMC SO 108 of 2019, Voi for the offence of sexual assault contrary to section 5(1) (a) (i)(2) of the Sexual Offences Act1 (the Act). The particulars of the offence were that on the 24th day of October 2019 at [particulars withheld] School in Jomvu Sub-County within Mombasa County in the Republic of Kenya, he intentionally and unlawfully used his fingers to penetrate the vagina of AAA a child aged 6 years. There was no finding on the alternative count of committing an indecent act with a child contrary to section 11(1) of the Act.1Act No 3 of 2006.

2. The principles to be kept in mind by a first appellate court while dealing with appeals are:22See Ganpat v State of Haryana [2010] 12 SCC 59. a.There is no limitation on the part of the appellate Court to review the evidence upon which the order appealed against is founded and to come to its own conclusion.b.The first appellate court can also review the trial court’s conclusion with respect to both facts and law.c.It is the duty of a first appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the decision appealed against or the entire proceedings if they are flawed.d.When the trial Court has breached provisions of the constitution or ignored statutory provisions, or misconstrued the law, or breached rules of procedure, or ignored crucial evidence or misread the material evidence or has ignored material documents, or in any manner compromised the accused rights to a fair trial or prejudiced the accused etc. the appellate court is competent to reverse the decision of the trial court depending on the materials in question.

3. The following is a proper evaluation and summary of the evidence led by the respective parties which culminated in this appeal. The prosecution case rested on the testimony of 8 witnesses namely, the complainant, her mother, a boda boda rider, her auntie, a trainee teacher, a deputy head teacher, a doctor, and a police officer. The defence case rested on his sworn evidence and a teacher from the same school the complainant was attending. The essence of the state’s case was that the appellant sexually assaulted the complainant, aged 6 years. The appellant’s defence on the other hand is that he did not sexually assault her.

4. AAA, the complainant gave unsworn evidence. The essence of her testimony was that she was 6 years and old in class 1, and on the material day she asked for permission to go to the toilet; that the appellant caught her hand and took her to the boys toilet and pricked her vagina with his finger; that he threw her clothes at the borehole near the toilet; that teacher R saw her bleeding from her private part called Madam M and G who poured water on her vagina and took her to the staff room and dressed her with pampers and cotton. She said she was taken to the coast general hospital.

5. PW2, her mother, testified that the complainant was born on February 6, 2013 and produced her birth certificate. She said she was called to PW1’s school because she had been cut by a bottle and she found he bleeding from her private part, that they took her to the Police and also to the hospital. She said her vagina had mucus like substance, that she was in hospital for one week and underwent surgery and the doctor said that she had been defiled, that she had a vaginal tear which was stitched. She recovered after 6 weeks. She said the complainant had worm like maggots in her vagina.

6. PW3, Stewart Ringa, a boda boda rider used to take PW2’s children to school. On the material day, the teacher asked him to call PW1’s because she had an issue.

7. PW4, ZAA, accompanied PW2 to Changamwe police station. She said PW2 said she had been informed by the school that PW1 had been injured by a bench. She said the complainant had mucus like substance on her thighs and blood stains on the pampers. She said they took the complainant to the hospital, where she was admitted and taken to theatre the next day. She said PW1 said the appellant inserted fingers in her vagina.

8. PW5, RM said two students told her that PW1 was bleeding, she took her to the toilet and noted that blood was oozing from her vagina. She said PW1 told them that she was hurt by a bottle, but she again changed and said it was a vaginal wound.

9. PW6, NNK, said she was running a School called [particulars withheld] School, that the head teacher told her that PW1 was bleeding from her vagina. She said they took her to hospital were she underwent surgery and later the police interrogated her in camera.

10. PW7, Dr. Fatma Kassim, a medical officer at the Coast General Hospital produced the P3 form filled by Dr. Said Bumu whom she had worked with and she was familiar with his handwriting. She said blood was noted on her school uniform, that her hymen was broken with a perennial tear which was approximately 2 weeks old caused by a blunt object. She said the tear was repaired, and anti-biotics and analogies administered, the PRC was filled. She produced the P3 form and the PRC form.

11. PW8, Cpl Susan Wainaina attached to DCI Child Protection Unit, Mombasa visited the hospital with PC Maina and PC Wanjohi on October 29, 2019 and PW1 told them she was defiled and she identified the assailant. She produced the photographs taken at the scene and added that the school was very slow in assisting them in the investigations.

12. In his sworn evidence, the appellant said he did not know the complainant, but he learnt about her through the head teacher, who said she was bleeding from her private part; that she was taken to hospital. He later he took her clothes to the police. He said he was arrested on October 30, 2019 and later on charged in court.

13. DW2, Paul Omondi Onjwaya testified that the school undertook its own investigations but it could not establish how PW1 sustained the injuries. He said that the young children are escorted to the toilet by the class teacher.

14. The trial court was satisfied that there was penetration and that the appellant was positively identified. It concluded that the prosecution had proved the charges and convicted the appellant as charged and sentenced him to served 10 years imprisonment.

15. The appellant seeks to overturn both the conviction and sentence citing on two grounds, namely; that the learned Magistrate erred in finding that the prosecution had proved the offence; and, that the prosecution evidence was full of contradictions and inconsistencies.

16. The nub of the appellant’s counsel’s submissions is that the offence was not proved, that PW1 first said she had been hurt by a bottle, and later said she had a vagina wound. He also argued that none of the witnesses testified that they recovered the complainant’s clothes from the borehole where the complainant claims he threw them.

17. The essence of the respondent’s counsel’s submissions is that penetration was proved to the required standard, that her hymen was broken, that the appellant was properly identified and that charges were proved to the required standard.

18. For starters, it is trite law that the onus rests on the state to prove beyond a reasonable doubt that the accused committed the crime accused of. Equally trite is the principle that an accused should be acquitted if his or her exculpatory testimony can be reasonably possibly true. It has long been our law that the trier of fact should not consider the evidence implicating the accused and evidence exculpating the accused in a compartmentalised manner. The court must evaluate the evidence before it in its totality and judge the probabilities in the light of all the evidence. The proper approach was laid down inR v Mlambo3:-31957(4) SA 727 (A), especially at 738 A – C.“In my opinion, there is no obligation upon the crown to close every avenue of escape which may be said to be open to an accused. it is sufficient for the crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused.An accused’s claim to the benefit of a doubt when it may be said to exist must not be derived from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which are not in conflict with, or outweighed by, the proved facts of the case.”

19. InS v S4 the Supreme Court of Appeal of South Africa held:4[2012] ZASCA 85. “A court does not look at the evidence implicating the accused in isolation to determine whether there is proof beyond reasonable doubt nor does it look at the exculpatory evidence in isolation to determine whether it is reasonably possible that it might be true. The correct approach is set out in the following passage from Mosephi and others v R LAC [1980 – 1984] 57 at 59F – H: The question for determination is whether, in the light of all the evidence adduced at the trial, the guilt of the appellants was established beyond reasonable doubt. The breaking down of a body of evidence into its component parts is obviously a useful guide to a proper understanding and evaluation of it. But, in doing so, one must guard against a tendency to focus too intently upon the separate and individual part of what is, after all, a mosaic of proof. Doubts about one aspect of the evidence led in a trial may arise when that aspect is viewed in isolation. Those doubts may be set at rest when it is evaluated again together with all the other available evidence. That is not to say that a broad and indulgent approach is appropriate when evaluating evidence. Far from it. There is no substitute for a detailed and critical examination of each and every component in a body of evidence. But, once that has been done, it is necessary to step back a pace and consider the mosaic as a whole. If that is not done, one may fail to see the wood for the trees.”

20. It is trite that a court will not rely on such evidence where the witness has made a previous inconsistent statement, where the witness has not had a sufficient opportunity for observation and where there are material contradictions in the evidence of the witness. Although there is no rule of thumb, test or formula to apply when it comes to the consideration of the credibility of a single witness, a court should consider the merits and demerits of the evidence, then decide whether it is satisfied that the truth has been told despite the shortcomings in the evidence.

21. The only direct evidence implicating the appellant is that of the complainant. For such evidence to be accepted it must be clear and satisfactory in all material respects. A close scrutiny of this testimony reveals several material inconsistencies. First, PW1 said she was cut by a bottle. Second, she said the appellant inserted his fingers in her vagina. This inconsistency was not interrogated in the judgment.

22. Her own mother said “she had worm like maggots from the vagina…” This statement, coming as it did from her mother requires serious interrogation. Maggot like worms do not under normal circumstances from human bodies. Howe come the doctors did no detect this. Was it a sign of an untreated infection which had endured for some time. Was there a possibility of contamination from unclean toilets improper washing. Why was the presence of maggots not brought to the attention of the doctor. How come the doctors did not detect such a serious sign of infection. The defence counsel and the court never interrogated these pertinent questions. Simply put, the court, the prosecution and the defence let the opportunity to dig out the truth literally slip through their fingers never to be gathered again.

23. The other inconsistency is to be found in the testimony of PW4. She testified that PW2 (the minor’s mother) told her that the school informed her that the minor was injured by a bench. Again, this line of evidence was not pursued either by the trier of fact or the defence or the prosecution. The same witness said the complainant told her the appellant asked her to sit on a bench which had a nail. This evidence, serious, cruel and callous to the extreme as it sounds was not interrogated, at least to ascertain the truth. It’s not clear why the court which is a fact finder was not interested in establishing the truth. The defence is equally to blame. It never seized the opportunity to discount this line of evidence. Why are there so many versions describing the same incident.

24. The question which the trial court ought to have asked itself is whether PW1’s evidence is trustworthy. Trustworthiness depends on factors such as the child’s power of observation, their power of recollection and their power of narration on the specific matter to be testified. The other question is whether the above inconsistencies were material such that they left glaring gaps in her evidence. In each instance the capacity of the particular child is to be investigated. Their capacity of observation will depend on whether they appear intelligent enough to observe. Whether they have the capacity of recollection will depend again on whether they have sufficient years of discretion to remember what occurs while the capacity of narration or communication raises the question whether the child has the capacity to understand the questions put, and to frame and express intelligent answers. Also relevant is whether the child has been influenced and directed what to say by an adult. There are other factors as well which the court will take into account in assessing the child’s trustworthiness in the witness-box. Do they appear to be honest – is there a consciousness of the duty to speak the truth?

25. It is very difficult from the record to obtain a clear picture of a chronological sequence of events from the complainant’s evidence. The evidence vacillates between the appellant having used his fingers, injury inflicted by a bench, and or a nail. Even with all these three variations, the fourth disparity introduced by her own mother adds more confusion. She talked of the presence of worm like maggots in her vagina. Shocking at it may be, it cannot simply be disregarded. At the centre of all these variations is the question, where does the truth lie. The evidence of the complainant viewed together with the rest of the other witnesses should have given some kind of clarity, but all the evidence leaves the question, where the truth lies unanswered. The primary concern of the court as the trier of fact is to ascertain whether the evidence is trustworthy. The concept of trustworthiness was examined in Woji v Santam Insurance Co Ltd.5 The court found that it comprises of the following four components: -51981 (1) SA 1020 (A) at 1028B-D.a)The capacity for observation;b)The power of recollection, which depends on whether the child has sufficient years of discretion to remember what occurs around her;c)Narrative ability, which raises the question whether the child has the capacity to understand the questions put, and to frame and express intelligent answers;d)Sincerity, or a consciousness of the duty to speak the truth.

26. It is clear from what I have already mentioned, that even without invoking cautionary rules, the complainant’s evidence has failed to pass muster as being satisfactory in a number of respects. Material deficiencies and or inconsistencies in the State’s case were never pertinently considered by the trial court. And they are by no means trivial.

27. The accused enters the proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the State has on evidence put before the court satisfied the court beyond a reasonable doubt that the accused is guilty. The term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.6A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if the court believes the accused is guilty or likely guilty, that is not sufficient. In those circumstances the court must give the benefit of the doubt to the accused and acquit because the state has failed to satisfy the court of the guilty of the accused beyond a reasonable doubt. On the other hand, the court must remember that it is virtually impossible to prove anything to an absolute certainty and the State is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, the court is sure that the accused committed the offence, it should convict since this demonstrates that the court is satisfied of his guilty beyond reasonable doubt.76See the 1997, the Supreme Court case of Cananda in R v Lifchus {1997}3 SCR 320. 7Ibid.

28. Upon evaluating the totality of the evidence, I find and hold that the prosecution evidence was marred by inconsistencies and contradictions which made it totally unsafe to support the conviction. The evidence tendered did not irresistibly point towards the guilty of the appellant. The evidence does not exclude other possibilities and probabilities. I find and hold that this appeal succeeds. I allow it. I quash the conviction and set aside the sentence of 10 years and order that the appellant Simon Oooko Otieno be released from prison forthwith unless otherwise lawfully held. Right of appeal explained.

SIGNED, DATED AND DELIVERED VIRTUALLY AT VOI THIS DAY OF 2022JOHN M. MATIVOJUDGESIGNED, DATED AND DELIVERED VIRTUALLY THIS 6TH DAY OF OCTOBER 2022OLGA SEWEJUDGE