[2023] KEHC 23272 (KLR)

Peer v Republic (Criminal Appeal E004 of 2022) [2023] KEHC 23272 (KLR) (2 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23272 (KLR)

Republic of Kenya

In the High Court at Kitui

Criminal Appeal E004 of 2022

RK Limo, J

October 2, 2023

Between

Joseph Peer

Appellant

and

Republic

Respondent

(Appeal against the conviction and sentence in case number 38 of 2014 in the Chief Magistrate’s Court in Kitui)

Judgment

1. The appellant herein, Joseph Peer or Peter as he told this court was charged in Kitui Chief Magistrate’s Court Sexual Offence Case No 38 of 2014 with the offence of defilement contrary to section 8(4) of the Sexual Offences Act No 3 of 2006.

2. The particulars of the offence as captured in the charge sheet are that; the appellant on the 26th day of July 2020, in Mwingi East sub-county within Kitui County, intentionally and unlawfully caused his genital organ namely penis to penetrate genital organ namely vagina of SK (name withheld) a girl aged 17 years old.

3. He also faced an alternative count of committing indecent act with a child contrary to section 11(1) of Sexual Offences Act but because he was found guilty of the main charge, the subject of this appeal, I will delve on the principal count.

4. The appellant denied both charges. After full trial, the trial court convicted the appellant for the offence of defilement contrary to section 8 (4) of the Sexual Offences and sentenced to serve (15) years imprisonment. Prior to reaching its determination, the trial court considered the evidence of five prosecution witnesses who testified as follows;

5. YMK, (PW1) the complainant’s father told the court that he left his home on July 27, 2020 and when he returned the following day, he was informed that his daughter (the complainant herein) left home the previous day and had not returned. He stated that he was informed by his other children that the complainant had gone to the appellant’s home and that the two were married. He stated that he went to the appellant’s grandfather’s home who confirmed o him that indeed, the complainant and the appellant were married. He also stated that he was informed by the appellant’s uncle that the appellant and the complainant had gone to Nairobi. Following the information, the witness stated that he reported the same to the area chief, (PW 2) who asked for the complainant to be presented to her office the following day. The witness stated that he visited the chief’s office the following day and the appellant and the complainant arrived together and that the appellant stated that he had married the complainant. He stated that he reported the matter at Nuu Police Station and thereafter took the complainant to Nuu Hospital where she was confirmed pregnant.

6. Rhodester Nzoka Mutheu (PW2), area Chief, Nyaani Location told the court that she received communication from PW1 on July 27, 2020 stating that the complainant was missing and that he suspected that she was with the appellant. She added that she later received a call from the appellant’s grandfather reporting that he had received threats from PW1. She stated that she asked him to avail the complainant at her office the following day which was done. That the complainant was accompanied by the appellant and the appellant’s grandfather and his uncle. she stated that the complainant told her that she had spent one night at the appellant’s house and that the appellant also indicated that he was ready to marry her. That after interrogating them both, she referred them to the police for further action.

7. The complainant in the case SK (PW3) testified that she visited the appellant on June 26, 2020 at around 2pm after church. She testified that she was 18 years old having been born on May 15, 2003 and had done class 8 scoring 206 marks. She stated that she sat her exams when she was pregnant otherwise she could have scored better. She however, absolved the appellant from blame stating that pregnancy belonged to another man known as Musee.

8. She testified that on June 26, 2020 after visiting the appellant, she spent the night in his house and engaged in sex with him and that the following morning she work up and made tea for the appellant and later cooked for him. She testified that later, the appellant’s aunt went running and informed her that her father had been sighted in the locality and that she went into hiding to avoid her father’s wrath. She stated that when the night fell she went back to the appellant’s grandmother and slept. She stated that the following morning the grandmother named Tabitha took her to the Chief where she was escorted to Nuu Police Station and later Nuu sub-county Hospital for medical examination. She stated that she was found to be 2 months pregnant but she insisted that the father of the child is MM not the appellant herein, adding that she delivered her baby girl on April 6, 2021.

9. Maxwell Syengo (PW4) a Clinical Officer based at Nuu Sub County Hospital testified and tendered a P3 Form in respect to the complainant stating that the saw was authored by a colleague known as Nyakundi. He however, did not say where Nyakundi was but tendered the P3 Form as P Ex1 and treatment notes as P ex 2. I will get back to that issue later in this judgement. He all the same, confirmed that the complainant was pregnant at the time of examination.

10. Loise Kathina (PW4) the Investigating Officer from Nuu Police Station and the investigation officer narrated how the matter was reported at the station. She stated that she interviewed the complainant who recounted how she spent the night at the appellant’s house on July 26, 2020. She added that she arrested the appellant at his house. The witness produced the complainant’s birth certificate as PEXH 3.

11. When placed on his defence, the appellant (DW1) gave an unsworn statement and denied spending the material night with the complainant or even knowing her. He told the court that he was in Nairobi at the time and that he was called by his grandfather on July 27, 2020 informing him that he had been threatened by PW1 and that he was required to go to the chief’s office the following day. He stated that he went to the chief’s office where he was interrogated and asked to give Kshs 70,000/- to the complainant’s parents. He stated that when he declined, he was arrested. He insisted that the charges against him were false.

12. The trial court evaluated the evidence and found that the prosecution had proved all the ingredients of the offence and convicted the appellant sentencing him to serve 15 years in jail.

13. The appellant felt aggrieved and filed this appeal raising the following ground namely: -i.That he is a first offender and thus a layman in lawii.That the learned trial magistrate erred in both law and fact by failing by convicting him relying on contradicting evidence this shifting the heavy burden unto him.iii.That the trial magistrate erred in both law and fact without considering the confession of the victim that he was not the main suspect instead used a scapegoat to hide the truth.iv.That the trial magistrate erred in both law and fact without considering that the victim’s two months’ pregnancy spoke more and she was running away from a well-founded fear from her father.v.That the trial court erred in both law and fact without bonding key witnesses entirely mentioned to clear doubt i.e. Joseph’s grandfather and uncle.

14. The appellant in his written submissions pointed out the following issues for determination;i.Whether the prosecution’s case was based on contradictions.ii.Whether the prosecution’s case was proved beyond doubt andiii.Whether the medical evidence tendered proved the case beyond doubt.

15. The appellant submits that there were contradictions on the evidence tendered pertaining to the age of the complainant at the material time, that PW1 stated that the complainant was 2 days pregnant while PW3 stated 2 months. The appellant also takes issue with the complainant’s admission that another person named MM impregnated her and not the appellant. He submits that this proves that the complainant was defiled by someone else.

16. The state/respondent has opposed this appeal vide its written submissions dated February 14, 2023

17. The state insists that the prosecution was able to prove through evidence all the ingredients of the offence to wit, age, penetration and identification of the appellant.

18. It denies that its case had contradictions contending that the minor contradictions were not major and did not go into the root of the prosecution’s case.

19. The respondent concedes that the sentence was a bit harsh and ask this court to be guided by the jurisprudence in meting out the right sentence.

20. This court has considered this appeal and the response made. The appellant as observed above was charged and committed of defilement contrary to section 8(1) (4) of the Sexual Offence ActNo 3 of 2006.

21. The duty of this court being the first appellate is stated in the case of Okeno v Republic (1972) EA 32 where the Court of Appeal for Eastern Africa stated that:“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya v R1975) EA 336 and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala v R[1957] EA 570. It is not the junction of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see (Peters v Sunday Post1978) E.A 424. ”

22. The appellant was convicted under section 8(1) (4) of the Sexual Offences Act which provides as follows: -1. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.’’

23. The issues for determination in this appeal are as follows;i.Whether the prosecution proved the elements of the offence of defilement beyond reasonable doubt.ii.Whether the sentence imposed was proper. 24. i)Whether the prosecution’s case was proved to the required standard.The prosecution was, given the nature of the offence required to prove 3 crucial elements which are:a.Ageb.Penetrationc.Identification of the perpetrator

25. On the question of age, the complainant at the time of trial indicated that she was 18 years at the time. She testified on May 25, 2021 and stated that the incident occurred on June 20, 2020. The complainant’s father stated that her daughter was aged 17 years at the time. The birth certificate is usually a primary document that establishes the element of age but in this instance the birth certificate which could have corroborated the fact of age as stated by the complainant’s father was tendered by the investigating officer. The court finds that the investigating officer was not a competent witness to tender it because he was not an expert in the field of science in respect to age assessment.

26. The other primary documents like the P3 Form, treatment chit or clinic card could have also established the fact of age but the production of the same during trial also infringed on the provisions of the law as it is going to be seen when the 2nd issue of determination is considered here below. Suffice to state that the age of a victim is a critical component in the prosecution’s case because the sentence to be meted out is dependent on the age of the victim.

27. The importance of proving the age of the complainant in sexual offences was emphasized in Alfayo Gombe Okello v Republic(2010) eKLR where the court stated that;‘‘In its wisdom, Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently, the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1)…proof of age of a victim is a crucial factor in cases of defilement under Sexual Offences Act. It must be proved failing which the offence will not have been proved beyond reasonable doubt in material particulars.’’

28. This court finds that relying on oral evidence in ascertaining the age of someone who is almost 18 years old is rather unsafe and unreliable. Having found that the birth certificate tendered was inadmissible having been produced by an incompetent witness, this court finds that the age of the complainant was not proved to the required standard.29. ii)Penetrationsection 2 of the Sexual Offences Act defines penetration as:‘‘the partial or complete insertion of the genital organs of a person into the genital organ of another person.’’

30. The complainant’s evidence is that she visited the appellant on July 26, 2020 and spent the night at his house where the two had sexual intercourse. The complainant told the court that the appellant forcibly removed her clothes when she declined to remove them herself. The appellant’s contention on the element of penetration was that medical examination indicated no evidence of injuries to the complainant’s genitalia. The appellant further indicates that the complainant admitted to having had a previous sexual encounter with someone else who was also the father of her unborn child at the time.

31. The above admission by the complainant that there was involvement of another man clearly casted some doubts about the culpability of the appellant. This is so in view of the fact that the complainant was said to have been 2 months pregnant at the material time of the offence.

32. The medical evidence (P3 Form-PEx 1 and treatment notes P Ex 2) tendered by Maxwell Syengo (PW4) would have helped in clearing the lingering doubts as to who was responsible for the defilement of the complainant but the same was mishandled by the prosecution because the production infringed on the provisions of section 33 of the Evidence Act. PW4 was required in law to lay basis as to why he was standing in for a Mr Nyakundi, the author of the cited medical documents. The witness was required to state how long he had worked with the said Nyakundi and whether he was familiar with his handwriting and signature. Besides that, he should have also revealed where the author was and if he could not easily be traced to come and testify without unnecessary expense or totally unavailable for any given reason. In the absence of the above information, this court finds that there was noncompliance of the provisions of section 33 of Evidence Act and that rendered the medical evidence here-say and inadmissible in evidence.

33. This court is alive to provisions of section 124 of the Evidence Act cited by the respondent, but in order to rely on that section of the law, the trial court needed to have expressly stated that it believed the complainant and give reasons as to why it thought that the complainant was speaking the truth in regard to the element of penetration. That crucial information is missing from the proceedings and judgement of the trial court.

34. In the light of the above, this court finds that the element of penetration, though established by the subsequent event of birth of a child, was not well connected to the appellant in view of the involvement of another man known as Musee and the said Musee was not charged or in the dock to answer to the charge.

35. The question of identification in view of the above observations was also not clearly established.In sum this court finds that the prosecution’s case as presented was not proved to the required standard. It was insufficient to found a conviction. The appeal filed is merited and the same is allowed. The conviction is set aside and the sentence is reversed. The appellant shall be set free unless lawfully held.

Dated, Signed and Delivered at Kitui this 2ndday of October, 2023. HON. JUSTICE R. LIMO-JUDGE