[2022] KEHC 610 (KLR)

Oyugi v Republic (Criminal Appeal 56 of 2019) [2022] KEHC 610 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 610 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal 56 of 2019

FA Ochieng, J

May 5, 2022

Between

Vincent Otieno Oyugi

Appellant

and

Republic

Respondent

(Being an appeal from the conviction and sentence of the Principal Magistrate’s Court at Maseno by Hon. Christopher Yalwala dated the 1 st October 2019 in Criminal Case S.O. No. 601 of 2016)

Judgment

1. The Appellant, Vincent Otieno Oyugi, was convicted for the offence of defilement, and he was then sentenced to 10 Years imprisonment.

2. In his appeal he has submitted that the conviction was based on insufficient and unattributed evidence.

3. He has also submitted that the sentence was excessive in the circumstances of the case.

Age of Complainant 4. The Appellant’s view was that the prosecution failed to discharge the onus of proving the age of the Complainant.

5. He pointed out that the entries in the P3 Form were inconsistent, as they cited the age as 14 and also as 15.

6. Secondly, if the Complainant was born in the year 2000, the Appellant points out that she would have been 16 years old as at the time when the offence was allegedly committed between 7th and 11th May 2016.

7. The Appellant also pointed out that the prosecution did not produce the birth certificate or school documents or a baptismal card for the Complainant.

8. In his considered view, the immunization card cannot be conclusive evidence of the Complainant’s age.

Burden of Proof 9. The Appellant submitted that the learned trial magistrate had shifted the burden of proof from the prosecution, to the accused. In his understanding, the judgment was indicative of the trial court’s perception that the accused ought to have proved his innocence.

10. He also noted that the prosecution did not rebut the defence put forward by the accused.

11. In any event, noted the Appellant, the Complainant was not a truthful witness, when her evidence can be seen to be inconsistent with the contents of the PRC Form.

Sentence 12. The Appellant submitted that the sentence of imprisonment for 10 years was excessive, when it is considered that there was a positive report from the Probation.

13. He also told this Court that he had remained in custody all through the trial. Therefore, he believed that he had already served the imprisonment which was imposed by the trial court. He asked the Court to order that he be set free from the prison custody.

14. Being the first appellate court, I am obliged to re-evaluate all the evidence tendered. I will proceed to do so, whilst bearing in mind the fact that I did not have the benefit of seeing the witnesses when they were giving evidence. Therefore, in the event that the learned trial magistrate based some decision upon the demeanor of a witness, this Court ought not to find fault with such decision unless the Appellant demonstrated to this Court that the decision was unsustainable, if the totality of the evidence was taken into account.

15. On the issue of the age of the Complainant, the trial court held that the immunization card was conclusive proof of age.

16. The immunization card was produced by PW2, who is the mother of the Complainant. It is a document issued by the Ministry of Health, and on it, the date of birth is given at being 22nd December 2000.

17. The Appellant did not raise any questions concerning the legitimacy of immunization card. He also did not cross-examine the Complainant’s mother about her testimony with regard to the age of the Complainant.

18. In the circumstances, I hold that the age of the Complainant was proved by way of the oral testimony of her mother, which was verified from the immunization card.

19. When the Complainant testified on 15th February 2018, she said that she was 17 years old. I find that the said evidence is consistent with that of her mother and also with the immunization card.

20. In the P3 Form, the Complainant’s age is cited as 15 years, as at 12th May 2016.

21. The said age is corroborative of the testimony of the Complainant’s mother, and so also the immunization card.

22. However, it is correct, as the Appellant observed, that on “Section C” of the P3 Form it was indicated that;“Estimated age of the person Examined – 14”

23. I understand that piece of information to be exactly what it said; it was an estimated age of the Complainant. Therefore it does not contradict the age, which was stated by the mother of the Complainant, and which was corroborated by the immunization card.

24. Finally, as the Complainant’s birthday was 22nd December 2000, the Appellant’s contention (that the Complainant was already 16, as at May 2016), is inaccurate.

25. On the question regarding burden of proof, the law is well settled. In criminal cases, the burden of proof rests squarely upon the prosecution.

26. If the prosecution did not prove any of the ingredients of the offence, the accused would be entitled to an acquittal.

27. The standard to which the prosecution must prove its case is beyond any reasonable doubt.

28. Therefore, if there is any reasonable doubt about the guilt of the accused, the Court must grant him an acquittal.

29. In the case of Elizabeth Waithiageni Gatimu v RepublicHCCRA No 50 of 2012, Mativo J. held as follows;“Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”

30. In my considered opinion, the learned trial magistrate did not shift the burden of proof to the accused. The court analyzed the evidence tendered by both the accused and the Complainant; and it then concluded that the testimony of the Appellant was not true.

31. Having come to the conclusion that the evidence tendered by the Appellant was not true, the trial court cannot then have concluded that such evidence had raised some reasonable doubt.

The Defence 32. The Appellant’s defence was that he only met the Complainant once; on 11th May 2016. She had gone for hair-cut at the Appellant’s barber shop.

33. Apart from giving a hair-cut to the Complainant, the Appellant categorically denied committing the offence.

34. If the Appellant first met the Complainant on 11th May 2016, that would imply that he cannot have committed the offences between 7th and 11th May 2016, as asserted in the charge sheet.

35. Meanwhile, the Complainant had testified that the Appellant first defiled her on 7th May 2016.

36. PW2, who is the mother of the Complainant, testified that the Complainant disappeared from home on 7th May 2016. PW2 explained that the Complainant left home, going for a hair-cut. However, the Complainant did not return home.

37. If the Appellant had sex with the Complainant between the 7th and the 11th of May 2016, that means that when the Complainant was examined by medical personnel, on 12th May 2016, the incident would have been fresh.

38. However, as the Appellant has pointed out, the information on the PRC Form was as follows;“Date of last consensual sexual intercourse – 2 months ago.”

39. First, that piece of information indicates that about 2 months prior to the period in issue, the Complainant had been having sex.

40. Therefore, when the Complainant testified that she first had sex on 7th May 2016, that would not be true.

41. Of course I am alive to the fact that whether or not a minor agrees to have sex with another person, the law presumes that the sexual act would still constitute defilement, because the minor lacked the requisite legal capacity to give consent.

42. Reverting to the facts in this case, I note that the trial court acquitted the Appellant in respect to the charge of Assault contrary to Section 251 of thePenal Code.

43. Although the Complainant had testified about having been whipped, using a rope, the medical examination did not reveal any signs of the blisters which she had allegedly got. On those grounds, the trial court gave the benefit of doubt to the accused.

44. I have asked myself whether or not the Complainant can therefore be said to be a truthful witness, in whom the trial court had reason to believe.

45. The trial court was of the following view;“…….. the complainant was in fact defiled, as per the medical evidence herein, and the fact that the evidence on the court record does not bring out any circumstances that would make the complainant merely lie against or frame the accused person, who was not even known to her prior to the said defilement.”

46. I find that if the Complainant had been sexually active even prior to the incident in question, that could have been reason enough for her to find a “fall guy”. I say so, because the Complainant told the court that the Appellant chased her away, after their first sexual encounter. It is the Complainant who refused to leave Appellant’s house.

47. At the same time, the Complainant complained that the Appellant had her locked up in his house, for days.

48. If the Complainant refused to leave, I think that there would have been no need to have her locked in.

49. I therefore do not know whether or not the Complainant was truthful. And on the basis of that reasonable basis for doubt, I find that the trial court ought to have acquitted the Appellant, albeit reluctantly.

50. In the event, I allow the appeal, quash the conviction and set aside the sentence.

51. In respect to the sentence, my considered view is that it was not excessive in the circumstances. Therefore, if I had upheld the conviction, I would have dismissed the appeal against the sentence.

52. But having quashed the conviction and having also set aside the sentence, I now order that the Appellant be set at liberty forthwith unless he was otherwise lawfully held.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 5TH DAY OF MAY 2022FRED A. OCHIENGJUDGE