[2022] KEHC 11034 (KLR)

PKK v Republic (Criminal Appeal 125 of 2015) [2022] KEHC 11034 (KLR) (13 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11034 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal 125 of 2015

EKO Ogola, J

July 13, 2022

Between

PKK

Appellant

and

Republic

Respondent

(From the conviction and sentence of Hon. G. Adhiambo Principal Magistrate’s court at Kapsabet in Criminal Case No. 1556 of 2012)

Judgment

Background 1. The appellant was convicted of the charge of defilement contrary to section 8(1) as read with section 8 (3) of the Sexual Offences Act No.3 of 2006. The particulars of the offence are that on May 12, 2012, at about 6. 00 pm the accused while at [Particulars Withheld] within Nandi County did cause his penis to penetrate the vagina of the complainant a girl aged 15 years. He was also charged with the alternative charge of engaging in an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars being that on May 12, 2012, at about 6pm the accused while at [Particulars Withheld] within Nandi County did intentionally and unlawfully caused his penis to come into contact with the breasts of the complainant a child aged 15 years. The Appellant was found guilty and sentenced to serve 20 years’ imprisonment.

2. The appellant being aggrieved by the said decision has lodged this appeal in which he raises the following grounds;i.That the learned trial magistrate erred in both law and fact by convicting and sentencing the appellant based on the evidence of the prosecution witnesses that did not establish his guilt to regent(sic) standard of proof beyond reasonable doubt without considering the grudge between the appellant and the mother of the complainant that arose because the appellant denied to sell them a piece of land.ii.That there was no any medical proof of evidence connecting him to the offence.iii.That there was no any DNA which was carried out to proof (sic) that the appellant impregnated the complainant.iv.That the Appellant’s defence was disregarded unfairly.v.That the learned trial magistrate did accord the appellant(sic) a fair trial taking into consideration the circumstances of the case.vi.That the appellant be granted leave by this honourable court to be supplied with court proceedings and have more grounds adduced during the hearing of the appeal.(sic)vii.That the appeal has high chances of success and merit if heard and determined.

Evidence 3. During trial, the Prosecution called five witnesses to testify against the appellant. PW1, SA the complainant, testified that on May 12, 2012 at around 6 pm, she had gone to Kapsabet Market to deliver milk to a certain woman and on her way back, she met the appellant who offered to take her to a hotel to have tea but he instead lured him to a certain house where he held her mouth, closed the door, pushed her on the bed, removed his and her clothes and defiled her. PW1 testified that after the incident, he pushed her outside and she went home and never said a word as the appellant had threatened to kill her if she told anyone what had happened.

4. PW1 testified that after some days she felt pain in the stomach and her grandmother took her to hospital where it was established that she was expectant. She testified further that upon being interrogated by her grandmother, she told her what had happened and that the incident was reported to Kapsabet Police station where she was issued with a P3 form which was filled at Kapsabet District Hospital. On cross examination by the appellant, PW1 maintained that she was defiled by the appellant but the Appellant was categorical that it was the complainant who used to go to his house on Fridays, which days her grandmother would travel to Mumias.

5. SWA testified as PW2. She introduced herself as the grandmother of the Complainant and stated that on June 29, 2012, she was with the Complainant at her house when the complainant complained of stomach ache and pain while passing urine.That on July 4, 2012, she took her to hospital and after some tests were conducted on her, she tested positive for pregnancy.

6. PW3 was Josephat Embekho a clinical officer based at Kapsabet District Hospital who examined the Complainant on July 5, 2012. According to PW3, the Complainant gave a history of being sexually assaulted on 12/5/2012 and on examination of her genitalia she had a broken hymen and PW3 concluded that she was defiled and was about 2 months pregnant at the time of examination. He produced the P3 form as Exhibit 1.

7. Corporal Scholastica Mwangale testified as PW4, that upon receiving the complaint, she did her investigations and established that the victim was a minor aged 15 years and that’s when they arrested and charged the appellant with the offence before court.

8. PW5 was JA the complainant’s biological mother who confirmed that at the time of the incident the Complainant was a minor aged 15 years.

9. PW6 was Tom Kipkosgei Kilele a clinician attached at Nandi Hills County Hospital who examined both the appellant and the complainant.

10. After the close of the prosecution’s case, the appellant was put on his defence where he gave unsworn evidence. He denied the charges levelled against him and stated that on 12/5/2012 he was at work the whole day and did not witness anything unusual. The Appellant stated he was shocked when on 14/7/2012 he was arrested and charged with the offence before court.

11. The trial court in its judgment and sentence delivered on September 17, 2015convicted the appellant and sentenced him to serve 20 years in prison which sentence is the subject of this appeal.

The Appeal 12. On June 17, 2021, this court directed that the appeal be canvassed by way of written submissions. Theappellant filed his submissions on November 1, 2021 whereas the Prosecution filed its on February 3, 2022.

The Appellant’s submission 13. Mr. Bitok, learned counsel for the appellant submitted that the appellant was not accorded a fair hearing in the trial court as he was not represented and therefore counsel faulted the trial court for failing to establish the appropriate standard in the entire process. It was submitted that the ingredients for a charge of defilement were not met. According to the appellant, penetration was not proved as the medical evidence tendered in court was not strong enough to secure a conviction in sexual offence.

14. Counsel also faulted the credibility of the prosecution witnesses and maintained that their testimony should not be relied upon as the said testimonies were full of contradictions and inconsistencies.

15. The appellant submitted he was charged with a defective charge sheet as the particulars therein did not contain the necessary information as to the nature of the offence charged. Mr. Bitok submitted that the particulars of the charge sheet omitted the word “intention and unlawful” . Counsel submitted that this omission was fatal to the prosecution’s case as the same rendered the plea defective in nature as the plea entered was in respect of the sexual act which was not lawful in nature. The cases of David Odhiambo v RepCr App No 5 of 2005 (C.A) and Sigilai v Rep[2004] 2 KLR 480, were cited to buttress this position.

16. In the end the appellant prayed that the appeal be allowed, the conviction quashed , the sentence be set aside and the appellant be set at liberty.

Respondent’s case 17. M/s Okok, learned counsel for the respondent on her part opposed the appeal and submitted that the allegation that the appellant’s right to a fair trial wasviolated does not hold any water as although the appellant was unrepresented during trial, he was able to fully participate in the trial and even cross examine witnesses. It was further submitted that the appellant was given an opportunity to adduce evidence when he was placed on his defence and he gave unsworn evidence.

18. On the issue of the defective charge sheet as alleged by the appellant, Ms Okok submitted that the definition of the offence of defilement as stipulated section 134 of the Criminal Procedure Code and section 8 (1) as read with section 8 (3) of the Sexual Offences Act does not include the words “intention and unlawful” and that the appellant’s allegation that the said words were not included in the particulars of the charge were therefore not true. It was submitted that the charge sheet was properly framed, the appellant understood the charge facing him, and fully participated in the trial and was able to offer a proper defence.

19. As regards the proof of defilement, M/s Okok submitted that the three ingredients which must be met being penetration, age of the minor and the identity of the accused were all proved. It was submitted that PW3 and PW6 the clinical officers who examined the complainant corroborated the complainant’s evidence that she was defiled. The Prosecution Exhibit 1 and the P3 form indicated that thecomplainant’s hymen was broken and that she was pregnant at the time of both examinations. Counsel submitted that the evidence of penetration was therefore solid.

20. On the allegation by the appellant that the Complainant was not a truthful witness and that the court erred in convicting him on the complainant’s evidence which was uncorroborated, M/s Okok cited section 124 of the Evidence Act which provision requires that an accused person is not liable to be convicted on the basis of the evidence of the victim unless such evidence is corroborated. It was noted that the proviso to this section makes an exception in sexual offences.

21. On the complainant’s age, counsel submitted that the complainant testified on August 29, 2012and indicated that she was 15 years at the time. She produced her birth certificate as Prosecution Exhibit 2 which showed that she was born on September 30, 1997.

22. As regards the identity of the perpetrator, the prosecution submitted that PW1 in her evidence referred to the appellant by name and told the court that the appellant was someone whom she had known prior to the incident.

23. In the end, it was submitted that the appeal lacks merit and should therefore be dismissed in its entirety.

Determination 24. I have perused the entire evidence on record and the submissions filed by the rival parties. The duty of this court as the first appellate court is to re-evaluate the evidence afresh and come up with a fresh finding with a caution that it did not have the chance to witness the full trial like the lower court. This test was set out in Okeno v Republic[1972] EA 32 as follows: -“The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M Ruwala v Republic [1957] EA 570. ) It is not the function 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 Post, [1958] EA 424. )”

25. The three ingredients of the offence of defilement are now settled as being;i.age of the complainant,ii.Proof of penetration,iii.Positive identification of the assailant.

26. The age of the complainant was established by the production of the birth certificate (exhibit 2) which indicated that the minor was born on September 30, 1997. The offence was alleged to have been committed on May 12, 2012 which then means at the time of the incident the complainant was 14 years and 8 months old. The age of the complainant was therefore proved beyond reasonable doubt.

27. The next issue that I need to address myself to is with regard to penetration. Although I note that the P3 form which is the subject of this issue was misplaced and could not be retrieved, I must state that from the judgment of the trial court, I have established that the learned trial magistrate made reference to the same after interrogating the said document. PW3 in his evidence testified that he examined the complainant and established that the hymen was broken and the pregnancy test was positive. I do not think I need a P3 form to establish this fact. I therefore find that there was penetration.

28. Lastly, on identification as an ingredient of defilement, this court is required to establish if indeed it is the Appellant who caused the penetration. PW1 testified that she was defiled by Appellant. While cross examining the complainant, the Appellant uttered “ You used to come to my house on Fridays which days your grandmother used to travel to Mumias.” This statement alone meant that the complainant knew the appellant and may have gone to his house severally prior to the incident. I therefore find that the identity of the perpetrator of the offence was established.

29. The sum total of this courts evaluation is that the evidence presented before the lower court sufficiently proved the elements of defilement and that the appellant’s conviction in that regard was well-founded.

30. I therefore find no merit on the appeal on conviction. The appeal on conviction is therefore dismissed.

31. On sentence however, the 20 year sentence given by the trial court shall run from the date of arrest, that is from 16/7/2012 since the appellant was partly out on bond and partly in remand.

DATED, SIGNED AND DELIVERED ON 13TH OF JULY 2022. E. K. OGOLAJUDGE