[2022] KEHC 10130 (KLR)

Ouko v Republic (Criminal Appeal 45 of 2019) [2022] KEHC 10130 (KLR) (16 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10130 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal 45 of 2019

JN Kamau, J

May 16, 2022

Between

Nicholas Collins Ouko

Appellant

and

Republic

Respondent

(Being an Appeal from the Judgment of Hon C.N Oruo (RM) delivered at Maseno in Senior Resident Magistrate’s Court in Sexual Offence Case No 29 of 2017 on 15th August 2018)

Judgment

Introduction 1. The appellant herein was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No 3 of 2006. He had also been charged with an alternative offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.

2. He was tried and convicted by Hon C.N Oruo (RM) and sentenced to serve twenty (20) years imprisonment for the offence of defilement.

3. Being dissatisfied with the said Judgement, on August 14, 2019, he lodged the Appeal herein. His Petition of Appeal was undated. He set out three (3) grounds of appeal. He filed Supplementary Grounds of Appeal on 4th October 2021. He set out seven (7) Supplementary Grounds of Appeal.

4. His undated Written Submissions were filed on September 28, 2021while those of the Respondent were dated and filed on November 1, 2021.

5. This Judgment is based on the said Written Submissions which both parties relied upon in their entirety.

Legal Analysis 6. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.

7. This was aptly stated in the case of Selle &another vs. Associated Motor Boat Co Ltd &others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.

8. Having looked at the appellant’s and respondent’s Submissions, it appeared to this court that the issues that had been placed before it for determination were as follows:-a.Whether or not the appellant’s right to fair trial was infringed upon;b.Whether or not the prosecution had proved its case beyond reasonable doubt; andc.Whether or not, in the circumstances of this case the sentence meted upon the appellant by the Trial Court was lawful and or warranted.

9. The court dealt with the three (3) issues under the following distinct and separate heads.

I. Fair Trial 10. Supplementary Ground of Appeal No (1) was dealt with under this head.

11. The appellant submitted that the Trial Court failed to furnish him with certified copies of the Trial proceedings to enable him prepare for his defense. He pointed out that his right under article 50(2) of the Constitution of Kenya, 2010 was therefore contravened hence a gross prejudice of justice. He argued that he requested for the same but the Trial Court did not supply and forced him to defend himself. The respondent did not pick up on this issue.

12. Article 50(2) of the Constitution of Kenya 2010 provides as follows:Every accused person has the right to a fair trial..

13. Notably, a reading of the Trial Court’s proceedings of November 20, 2017 showed that after the appellant pleaded not guilty, the Trial Court directed that the appellant be supplied with the Witness Statements. He did not indicate to the Trial Court if he had been supplied with the same when the trial commenced on February 28, 2018.

14. When this matter came up for defence hearing on July 16, 2018, it showed that the Appellant requested to be supplied with proceedings. The Trial Court ordered that he be furnished with photocopies of proceedings and adjourned his case to 26th July 2018. On this day, he did not alert the Trial Court that he had not been furnished with the said proceedings, if at all.

15. Notably, he was under a duty to have notified the Trial Court if he had not been supplied with the said proceedings. Had he alerted the Trial Court that he had not been furnished with the same and the hearing proceeded, that would have been a travesty of justice. Conversely, if at all he was not supplied with the said proceedings but he failed to notify the Trial Court of the same, he was to blame and could not therefore purport to bring up failure to furnish him with proceedings at this appellate stage.

16. In the premises foregoing, Supplementary Ground of Appeal No (1) was not merited and the same be and is hereby dismissed.

II. Proof of Prosecution’s Case 17. Grounds of Appeal Nos (1), (2) and (3) of the Petition of Appeal and Supplementary Ground of Appeal No (2), (3), (4), (5), (6) and (7) were dealt with together under this head as they were all related. The court considered the same under the following distinct sub headings.

A. Age 18. The Appellant did not submit on the issue of age. On its part, the Respondent argued that the Prosecution proved that LA (hereinafter referred to as “PW 1”) was aged fourteen (14) years at the time she was defiled. They referred this court to the baptismal card which showed that she was born on April 8, 2003.

19. It submitted that although the Charge Sheet had indicated that she was fifteen (15) years at the time of the offence, the same was not fatal to the Prosecution’s case for the reason that the punishment to be meted out for defiling a child between twelve and fifteen years was a sentence of not less than twenty (20) years.

20. Notably, during the voire dire examination, PW 1 indicated to court that she was fifteen (15) years of age. Her mother, DA (hereinafter referred to as “PW 2”) testified that she was born on 8th April 2003 and was therefore fifteen (15) years at the time of the incident. No 107135 PC Christine Ndanu (hereinafter referred to as “PW 7”) produced PW 1’s Baptism Certificate which indicated that she was born on 8th February 2003.

21. In the case of Kaingu Elias Kasomo vs Republic Criminal Case No 504 of 2010 as was cited in NNC vs Republic [2018] eKLR, the Court of Appeal stated that although the age of a minor ought to be proved by medical evidence, baptism cards, school leaving certificates could also be used to prove the minor’s age.

22. In the case of Musyoki Mwakavi vs Republic [2014] eKLR, the court therein made a similar observation when it stated that apart from medical evidence, the age of the complainant could also be proved by birth certificate, the victim’s parents or guardian and observation or common sense.

23. It was clear from the authorities cited above that the Baptismal card and the evidence that was adduced by PW 1, PW 2 and PW 7 were conclusive proof of PW 1’s age. For all purposes and intent, this court was satisfied that the Prosecution proved beyond reasonable doubt that PW 1 was aged fifteen (15) years at the material time.

Voire Dire Examination 24. The Appellant submitted that he was not accorded the right to due procedural process as provided for by article 25(c) as read with article 50(2)(a) of the Constitution of Kenya, 2010. He argued that the procedure that led to substantive law (sic) was violated. He submitted that the voire dire examination was conducted without following the proper procedure under the provisions of section 19 of the Oaths and Statutory Declarations Act Cap 15 (Laws of Kenya) and therefore did not meet the test provided under Section 124 of the Evidence Act.

25. He added that even after the Trial Court conducted the voire dire examination, it did not show the certainty of PW 4’s truthfulness as required by the provisions of Section 19 of the Oaths and Statutory Declarations Act. He questioned the need of conducting a voire dire examination if PW 1 and PW 4 could adduce sworn evidence as was indicated in the Trial record.

26. He argued that it was trite law that no rule of natural justice, no rule of evidence and no rule of common sense was to be sacrificed, violated or abandoned when it came to protecting the liberty of an accused person. He placed reliance on the case of Peter Kariba Ndegwa vs Republic (1985)KLR where the Court held that the accused was the most sacrosanct individual in the system of the legal administration. The Respondent did not submit on this issue.

27. Section 151 of the Criminal Procedure Code Cap 75 (Laws of Kenya) states that:-“Every witness in a criminal cause or matter shall be examined upon oath, and the court before which any witness shall appear shall have full power and authority to administer the usual oath”.

28. Section 19(1) of the Oaths and Statutory Declarations Act further states that:-“Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.

29. It was evident from the aforesaid provision that there is no set procedure of conducting a voire dire examination. All that is required is for the trial court to establish if a child of tender years understands the duty of speaking the truth and if such child does not understand the same, the trial court can direct that the child adduce unsworn evidence.

30. Notably, the Trial Court conducted a voire dire examination and established that PW 1 and PW 4 did not seem to understand the difference between sworn and unsworn evidence. It therefore found them to have been unfit to give sworn evidence and directed that they adduce unsworn evidence.

31. For unsworn evidence to be admissible, there must be other evidence to corroborate the unsworn evidence. The proviso of section 124 of the Evidence Act Cap 80 (Laws of Kenya) was therefore inapplicable where unsworn evidence had been adduced.

32. In this particular case, the Trial Court could not therefore rely solely on such PW 1’s and PW ‘s unsworn evidence to convict the Appellant herein. It was called upon to establish whether their evidence was corroborated by additional evidence before convicting the Appellant herein.

C. Penetration 33. The Appellant contended that PW 1 and PW 4’s evidence was not trustworthy as was stated in the case of Geoffrey Kionji vs Republic Criminal Appeal No 270 of 2010 (eKLR citation not given) and required corroboration of crucial witnesses or other material evidence.

34. In this regard, he placed reliance on the case of Abel Monari Nyanamba & 4 others vs Republic Criminal Appeal No 86 (1994) (eKLR citation not given) where the court held that it was trite law and a general rule that evidence which requires corroboration must be corroborated by an independent witness.

35. He asserted that the Prosecution failed to prove its case beyond reasonable doubt and that the Trial Court ought to have considered his defence which was not challenged by the Prosecution. In this regard, he placed reliance in the case of Uganda vs Sebyala & Others (1969) E.A 2004 where the court held that the accused person did not have to establish that his alibi was reasonably true (sic).

36. He further submitted that PW 7 never took any photographs of the scene of crime or call independent witnesses from the neighbourhood and/or carried out DNA test to prove what broke PW 1’s hymen. He was emphatic that PW 7 never investigated the case before arrest.

37. He invoked section 150 of the Criminal Procedure Code which provides that a court can summon or call any person as a witness at any stage of trial and in this regard referred this court to the case of Mungai vs Republic 1212(sic)eKLR.

38. He further contended that medical evidence was not mandatory or the only evidence upon which an accused person could be convicted. He stated that even though a court could convict an accused person in a sexual offence case on the evidence of the victim alone as provided in section 124 of the Evidence Act, in the instant case, no truth and such belief was recorded by the Trial Court. He was also emphatic that the evidence of PW 1 and PW 4 was not sufficient to convict him for the reason that a minor could not corroborate another minor’s evidence.

39. He contended that even though Collins Ochieng, a Clinical Officer at Chulaimbo Hospital (hereinafter referred to as “PW 5”), clearly conducted the examination, there was no significant medico-surgical history proving defilement on general physical examination. He added that PW 5 stated PW 1’s clothes were in a normal state and that the outer wall of the vagina was clean and healthy.

40. He pointed out that it was reported that PW 1 and PW 4 engaged in early sexual intercourse due to problems in the family. He further argued that if four (4) men defiled a minor, the condition of such a minor would have been worse. He therefore submitted that PW 1’s allegations were false and could not be relied on. He pointed out that her allegations were refuted by PW 5’s evidence as he found her to have been in good health. He was emphatic that he was not medically associated with the said offence because he was not tested as required by law.

41. He was categorical that the evidence that was adduced against him was fabricated because of PW 2’s inheritance as she was also admired by Evans Odhiambo Dolla (hereinafter referred to as “PW 6”) who intended to build her a house.

42. On its part, the Respondent contended that penetration was proved by medical evidence and corroborated by the evidence of PW 1 as was highlighted in Charles Wamukoya vs Republic Criminal Appeal No 72 of 2013 (eKLR citation not given). It added that PW 5 examined PW 1 and later filled her P3 Form at Chulaimbo Hospital. It pointed out that the medical examination revealed that PW 1 had whitish discharge in her vagina and that her hymen had been penetrated. It contended further that the vaginal wall was swollen and was reddish in colour which suggested there was inflammation. It was emphatic that the evidence proved that PW 1had been defiled.

43. According to PW 1, the Appellant broke into the door (sic) and told her to have sex with him. She asserted that she screamed but he closed her mouth. She explained to the Trial Court that he inserted his penis into her vagina. She added that he then left and returned when her mother came home. On her part, PW 2 testified that on 17th August 2017 when she returned home from a posho mill, PW 1 informed her that the Appellant had defiled her.

44. PW 1’s sister, MA (hereinafter referred to as “PW 4”) only said that the Appellant came to their house when PW 2 was away. She did not say what he did. ROO (hereinafter referred as “PW 3”) told the Trial Court that PW 2 informed him that there were about four (4) who included the Appellant who broke into her house and sexually assaulted PW 1.

45. Left as it is, their evidence against the Appellant herein was weak. However, the same was corroborated by the scientific and medical evidence that PW 5 adduced in evidence. The P3 Form and Treatment Notes showed that PW 1’s hymen was penetrated and the vaginal wall was swollen and reddish in colour with signs of inflammation. The P3 Form showed the age of the injuries to have been twenty four (24) hours.

46. The medical evidence outweighed the Appellant’s defence that the evidence that was adduced against him was fabricated because PW 6 wanted to inherit PW 2 as a wife. This court was persuaded to find and hold that his defence was a mere denial.

47. Accordingly, the Trial Court could not be faulted for having relied upon the medical evidence to corroborate PW 1’s, PW 2’s, PW 3’s , PW 4’s and PW 6’s evidence to convict him as the same was congent and consistent.

C. Identification 48. The Appellant did not submit on the issue of identification. On the other hand, the Respondent contended that PW 1 testified that the Appellant was her father’s friend which meant that this was a person she had seen before and could positively identify. It added that she pointed at him in court as the person who had sex with her. It was emphatic that he was therefore positively identified as the perpetrator.

49. Having analysed the evidence on record, it appeared to this court that the Appellant and PW 1 were not strangers to each other. PW 1 positively identified him during trial as the person who had sexual intercourse with her and stated further that he was a friend to her father, a fact that was corroborated by PW 2 who testified that the Appellant was their neighbour, from their clan and was a friend to his late husband. She also added that he was her male friend. Further, PW 2 also identified the Appellant in court as the person who defiled PW 1. In his sworn evidence, the Appellant did not deny having known PW 1.

50. It was the considered view of this court that the Appellant’s identification was through recognition as he was not a stranger to PW 1, PW 2 and PW 4 and having been linked to the offence by the medical evidence that was adduced herein, he could not have removed himself from the scene of the incident on the material date and time. This court thus came to the firm conclusion that he was positively identified as the perpetrator of the offence herein.

Conclusion 51. Section 108 of the Evidence Act Cap 80 (Laws of Kenya) provides that:-“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

52. Further, Section 109 of the Evidence Act stipulates that:-“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

53. Having analysed both the Prosecution and the Appellant’s cases, this court came to the firm conclusion that the Prosecution proved its case to the required standard, which in criminal cases, is proof beyond reasonable doubt as envisaged in Section 108 and section 109 of the Evidence Act. Indeed, all the ingredients of the offence of defilement being identification or recognition of the offender, penetration and the age of the victim that were set out in the case of George Opondo Olunga vs Republic [2016] eKLR were proven.

54. The Appellant was obligated to have called a witness to corroborate his alibi defence that he was busy going to work at the time of the incident, the burden of proof having shifted to him. His arguments that there were glaring inconsistencies, that the Prosecution failed to call crucial witnesses and that the Trial Court gravely erred on points of law by convicting him on a case that had not been proven beyond reasonable doubt as prescribed by the law under section 111 of the Evidence Act thus fell by the wayside. Notably, the Prosecution was not required to call a particular number of witnesses to prove its case but was only required to call only those witness who added value to its case.

55. In the circumstances, this court found and held that Grounds of Appeal Nos (1), (2) and (3) of the Petition of Appeal and Supplementary Grounds of Appeal Nos (2), (3), (4), (5), (6) and (7) were not merited and the same be and are hereby dismissed.

III. Sentence 56. The appellant did not appeal and/or submit on sentence however this court found it prudent to determine the same as the respondent submitted on it.

57. The Respondent contended that the appellant’s sentence was lawful and should be upheld. In this regard, it relied on section 8(3) of the Sexual Offences Act which provides that:-“A person who commits an offence of defilement with a child between the age of twelve and fifteen is liable upon conviction to imprisonment for a term of not less than twenty years.”

58. Having found that the Learned Trial Magistrate did not err in holding that the Prosecution had proven its case, it was the considered view of this court that the sentence that was imposed upon the Appellant herein was warranted and was lawful in the circumstances of the case.

Disposition 59. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal lodged on 14th August, 2019 was not merited and the same be and is hereby dismissed. The conviction and sentence that was meted upon the Appellant be and is hereby upheld as the same was safe.

60. It is so ordered.

DATED AND DELIVERED AT KISUMU THIS 16TH DAY OF MAY 2022J. KAMAUJUDGE