[2017] KEHC 2950 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

H.C. CRIMINAL APPEAL NO.108”B” OF 2013

R K W ………………………………………………….……….. APPELLANT

VERSUS

REPUBLIC ..…………………………….......………..……… RESPONDENT

(Appeal arising from the judgment of Hon S.K. Ngetich, SRM in Mumias Senior Principal Magistrate’s Court Cr. Case No.434 of 2013 delivered on 17th September, 2015)

JUDGMENT

1. The appellant herein was convicted of the offence of defilement contrary to section 8(1)(4) of the Sexual Offences Act No.3 of 2006 and sentenced to serve 15 years imprisonment. He was aggrieved by the judgment of the lower court and has appealed against both conviction and sentence.

The particulars of the charge against the appellant were that on the night of 2nd and 3rd June 2013 at [particulars withheld] Village [particulars withheld] sub-location in Mumias District within Kakamega County he intentionally and unlawfully caused his penis to penetrate the vagina of J O O (herein referred to as the complainant), a child aged 16 years.

The prosecution case:

2. The evidence against the accused was that the complainant (PW2) was in 2013 a standard 6 pupil at [particulars withheld] Primary School. That on the 2nd June 2013 she left her home at 1 pm and went to Mung’ang’a field to watch some games. That after the games she went to Shikulu Market with another girl called H. That while at the market they met the appellant who was unknown to her but was known to H. She talked to the appellant. The appellant then convinced her to go and pick a story book at his home. She went with him to his house. He did not give her the story book. He told her that he will release her to go home on the following day. He pulled her to his bed. He removed her undergarments and put on a condom. He had sex with her three times. The next day the appellant locked her inside the house and went to school. He later brought her some clothes.

3. Meanwhile when the complainant failed to return home on 2nd June 2013, her mother, PW1, started to look for her. On the evening of the following day, she received information that she was locked up at a certain house at [particulars withheld] village. She informed her husband, PW4. They went to the said village with a village elder, PW5. The village elder led them to the house of the appellant. In the house they found the complainant, the appellant and another young man. The appellant and the complainant were taken to the area Assistant Chief PW6. On the 4th June, 2013 the Assistant Chief escorted them to Shikanda Police Patrol Base. They were received by Corporal Karakacha, PW7. The complainant made a report of defilement. CPI Karakacha issued the complainant with a P3 form. The complainant and the appellant were escorted to Makunga Dispensary for medical examination. The complaint was examined by a clinical officer (did not testify in the case.) On the 5th June 2016, the complainant was escorted to Mumias Sub-county Hospital where another clinical officer, PW3, completed the P3 form. The clinical officer relied on treatment notes made at Makunga dispensary to complete the P3 form. He noted that the hymen was torn and the introiters (opening to the vagina was open.) He formed the opinion that sexual intercourse had taken place. After CPI Karakacha finished investigations he charged the appellant with the offence of defilement. The appellant denied the charges. The following documents were produced during the hearing:-

The complainant’s child health immunization card Ex1 that indicated her date of birth as 13th October 1996.

A letter from the complainant’s school stating that she was a pupil at [particulars withheld] Primary School, Ex2.

Treatment notes from Makunga Health Centre, Ex3.

P3 form, EX4.

Complainant’s baptism card dated 29th April 2011 indicating her date of birth as 13th October, 1996, Ex5.

Complainant’s certificate of birth, Ex 6, indicating her date of birth as 13th October, 1996.

Complainant’s school report for the year 2013, Ex7.

The appellant’s defence:

4. The appellant gave sworn evidence and stated that he was born in 1994. That he was a student at St. [particulars withheld] Secondary School in form three. That he had known the complainant when the complainant was staying with her sister. That the complainant had stayed with her sister for 4 months and then went back to the home of her parents. He then met her at Mung’ang’a after one year while attending a function. That she was carrying some clothes but he did not know her intention. She asked him to take him to his home. He did so. She refused to leave his house. On the following day he left her in the house and went to school. When he went back he found her still there. Her parents went to his house in the company of the area leader. They were taken to the Assistant Chief and later to the police station. Later he was charged.

5. The appellant admitted in cross examination that he had sex with the complainant but said that he thought she was over the age of 18 years since she was not going to school.

Findings of the trial court:

6. In his judgment, the trial magistrate found that the complainant was of the age of 16 years and therefore a child for the purposes of the Sexual Offences Act. The magistrate found that there was evidence to prove that there was penetration to which the appellant himself admitted in his defence. The magistrate dismissed the defence of the accused that implied that the complainant had consented to sex and held that consent does not afford a defence in cases of defilement. The magistrate found that the case against the appellant had been proved and sentenced him to the minimum sentence provided by section 8(4) of the Sexual Offences Act No.3 of 2006 which is 15 years.

Grounds of appeal:

7. The grounds of appeal that were drafted by the appellant himself were that:-

1) The learned trial magistrate erred in law and fact by failing to consider that the protection of rights on both the prosecution and defence parties was upheld, granted under article 50 of the constitution of Kenya as a fair trial.

2) There was a grave misdirection on the part of the trial court by failing to appreciate that there was no material evidence produced by prosecution as exhibit.

3) The trial court erred in law and fact by relying a conviction on evidence of a minor without any corroboration of identification or whatsoever to justify a conviction which was miscarriage of justice herein.

4) The trial court erred in the law and fact by basing its decision on belief and anticipation not warranted by the evidence on record to justify conviction.

Submissions by the appellant:

8. The issues raised by the appellant in his written submissions were not raised by during the trial except the issue that he did not know that the complainant was under the age of 18 years.

Submissions by the State:

9. The prosecution counsel submitted that the prosecution had proved that the complainant was under the age of 18 years, that it had proved by medical evidence that there was penetration and that it is the appellant who penetrated the complainant.

The State further submitted that the appellant had stated in his evidence that he knew the appellant before. That he had known her for one year and four months. That his defence that he did not know her age is a lie. That though there was no necessity of corroboration of the evidence of the complainant under the proviso to section 124 of the Evidence Act, there was sufficient corroboration from the evidence of the clinical officer PW3.

DETERMINATION:

Duty of an appellate court:

8. This is a first appeal. The Court of Appeal set out the duty of an appellate court as thus in Okeno vs Republic (1972) E.A. 32 at page 36:-

“An appellant on a first appeal is entitled to expect evidence as a whole to be submitted to a fresh and exhaustive examination 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. 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.”

The grounds of appeal can be summarized as follows:-

1) That the appellant was not accorded a fair trial as envisaged by Article 50 of the Constitution of Kenya 2010.

2) That the conviction was against the weight of the evidence.

3) That there was no identification of the appellant.

10. The tenets of a fair trial are enshrined in Article 50 of the Constitution. The appellant did not expound how he was not accorded a fair trial under Article 50 of the Constitution. The evidence shows that the charge was read out to him in a language that he understood. He pleaded not guilty to the charge and he was tried as provided by the law. He was allowed to cross-examine witnesses and was given an opportunity to call witnesses. When he was convicted he was given an opportunity to mitigate. There is thereby no basis of the argument that he was not accorded a fair trial.

11. The appellant was charged under section 8(1) of the Sexual Offences Act. The section states as follows:-

“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.”

The ingredients of the offence of defilement that the prosecution is required to prove are:-

(1) The age of the victim of the offence.

(2) Penetration on the victim.

(3) Identify of the accused as the person who perpetrated the offence.

12. The appellant argued that the age of the complainant was not established. The importance of proving the age of a victim of defilement was emphasized by the Court of Appeal sitting at Malindi in the case of Kaingu Elias vs R (2010) eKLR where it held that:-

“Age of the victim of the sexual assault under the Sexual Offences Act is of critical importance. It forms part of the charge which must be proved in the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed upon conviction will be dependent on the age of the victim.”

13. In this case the complainant testified that in June 2013 she was aged 15 years having been born in 1996. That she was in class 6. The complainant’s mother stated that the girl was born in 1996 and that in February 2013 she was aged 16 years. The complainant’s mother produced the complainant’s clinic health immunization card that indicated that she was born on 13th October, 1996. The complainant’s father PW4 produced the girl’s baptism card and birth certificate that indicated the date of birth as 13th October, 1996. The baptism card was obtained on 29th April 2011 which was before the alleged offence took place. The birth certificate was issued on 30th October, 2013 which was after the alleged offence took place. Even if the birth certificate is not considered, the other documents that were obtained before 2nd June 2013 indicate that the girl was born on 13th October, 1996. This means that in June 2013 she was aged 16 years and 8 months. The trial magistrate was therefore right to find that the girl was aged 16 years. The prosecution did thereby prove that the complainant was a child of the age of 16 years.

14. Penetration is defined under section 2 of the Sexual Offences Act No.3 of 2006 to mean:-

“the partial or complete insertion of the genital organs of a person into the genital organs of another person.”

The complainant testified that the appellant had sexual intercourse with her three times between 2nd June 2013 and 3rd June 2013. The appellant did admit in cross-examination that he had sexual intercourse with the complainant during that time.

15. The appellant however argued that he was not examined to prove that he committed the offence. The clinical officer PW3 stated in his evidence that the hymen to the girl’s vagina was torn but this was not noted in the P3 form. The treatment notes also do not seem to have captured that. However it is not necessary to produce medical evidence to prove an offence of defilement. In the case of Geoffrey Kioji vs R, Nyeri Criminal Appeal No.270 of 2010 -cited inDennis Osoro Obiri vs R(2014) where the court stated that:-

“Where available, medical evidence arising from examination of the accused and linking him to defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person. … Under proviso to section 124 of the Evidence Act Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence on the evidence of the victim, if the court believes the victim and records the reasons for the belief.”

The complainant stayed with the appellant for two days. Her parents found her at the house of the appellant. All this coupled with the appellant’s admission proves that the appellant penetrated the complainant. The argument by the appellant that there was no exhibit produced to support the charge does not hold water.

16. The appellant implied in his defence that the complainant had consented to sexual intercourse. However the law under the Sexual Offences Act is that a child below the age of 18 years cannot consent to sexual intercourse. This same view was held by Chitembwe J in Martin Charo vs R(2016) eKLR.

17. The appellant argued that he did not know that the girl was below the age of 18 years as she was not attending school. He stated that the complainant was carrying some clothes when she went to his house. The report given to the clinical officer who completed the P3 form, PW3, was that the girl had sex with her boyfriend on the night of 2nd/3rd June 2013. The complainant denied in cross-examination that she had extra clothing when she went to the house of the appellant. Her mother, PW1, however stated that when the girl disappeared from home she had carried away extra clothes with her. This actually supported the evidence of the appellant that when he met the complainant on 2nd June, 2013 she was carrying some clothes.

18. It is a defence to a charge of defilement under sub-section 8(5) of the Sexual Offences Act if:-

(a) it is proved that the child deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence.

(b) the accused reasonably believed that the child was over the age of eighteen years.

Section 8(6) further provides that:-

“The belief referred to in sub-section 5(b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.”

20. The complainant claimed in her evidence in chief that the appellant was a stranger to her and that the appellant tricked her to go and pick a story book at his house and that she just agreed to go with him. However when cross-examined by the then advocate for the appellant, she stated that she had met the appellant prior to the incident while she was in the company of her girlfriend H. The complainant said that the appellant detained her in his house against her wish but there was no evidence that she made any attempt to escape the whole day when the appellant left her in the house and went to school. She did not scream for help. When her parents arrived, the door to the appellant’s house was not locked.

21. It is apparent the complainant was not candid enough of her relationship with the appellant. She seems to have willingly gone to the house of the complainant. She had skipped school to stay at the house of the appellant for reasons that are not clear. She had carried her clothes when she went to the house of the appellant. The complainant was nearly 17 years at that time. The appellant had not met her for over one year. He had no cause to believe that she was attending school as even on the second day, 3rd June 2013, she did not go to school. The circumstances of the case indicate that the complainant tricked the appellant to believe that she was not underage. There was no reason for the appellant to believe that she was under age as she was not going to school as the appellant would have expected. It was for the prosecution to prove beyond reasonable doubt that the appellant knew that the was below the age of 18 years. Once there is doubt that the accused did not know this, he is entitled to the benefit of doubt. The trial court did not consider the defence of the appellant that he did not know that the girl was below the age of 18 years. In that case I am bound to interfere with the judgment of the lower court.

22. On my own analysis of the evidence I have come to the conclusion that the appellant did not know that the girl was under the age of 18 years. The appeal thereby succeeds on that ground. The conviction on the appellant is thereby quashed and the sentence of 15 years is set aside. I order that the appellant be set at liberty forthwith unless otherwise lawfully held for any other offence.

Delivered, dated and signed at Kakamega this 3rd day of August, 2017.

J. NJAGI

JUDGE

In the presence of:

Appellant …………… present in person

Ng’etich …………..................….. for State

Okoit ………………...….. court assistant

14 days right of appeal