[2017] KEHC 7699 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CRIM. APPEAL NO. 114 OF 2016

REPUBLIC…………....... PROSECUTOR

VERSUS

JAMES AGOGO OBARE....APPELLANT

(Being an appeal from the conviction and sentence by Hon M. W. Kinyanjui Senior Resident Magistrate in Gatundu CMCRC 755 of 2014)

JUDGMENT

A. INTRODUCTION

1. James Agogo Obare (“Appellant”) was presented before the Principal Magistrate’s Court in Gatundu in Criminal Case NO. 114 of 2014 charged with a single count of defiling MWM, a child of ten years contrary to section 8(1) and (2) of the Sexual Offences Act No. 3 of 2006. The allegations were that he had defiled the minor diverse days between 6th July, 2014 and 8th July, 2014 at [particulars withheld] in Gatundu South sub-county within Kiambu County by causing penetration with his genital organ namely his penis into the genital organ, namely vagina, of MWM.

2. In the alternative, the Appellant faced a charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars are that on diverse dates between 06/07/2014 and 08/07/2014 at [particulars withheld] in Gatundu South Sub-county within Kiambu County, did intentionally touched breasts of MWM a child aged 10 years with his hands.

3. After a short trial in which the Prosecution called four witnesses, put the Appellant on his defence after which he gave an unsworn statement, the Learned Trial Magistrate convicted the Appellant and sentenced him to life imprisonment as by law provided.

4. The Appellant is aggrieved and has appealed to this Court.

5. I will, first, set out the standard of review and briefly rehash the facts of the case as it emerged from the lower court.

B. THE DUTY OF THE FIRST APPELLATE COURT

6. As the first appellate Court, I am duty bound to re-evaluate and reconsider all the evidence adduced during the hearing afresh and come to my own conclusions about all the elements of the crimes charged. In doing so, I am to be guided by two principles. First, I must recall that I must make appropriate allowance for the fact that I did not have a chance to see or hear the witnesses. This means that I must give due deference to the findings of the Trial Court on certain aspects of the case. Second, in re-evaluating and re-considering all the evidence, I must consider the evidence on any issue in its totality and not any piece in isolation. This principle constrains me to reach my own conclusions on the totality of the evidence as opposed to merely using the Trial Court’s findings as a foil to endorse or reject its findings. See Okeno v Republic[1973] E.A. 32;Pandya vs. R(1957) EA 336,Ruwala vs. R(1957) EA 570.

C. THE EVIDENCE PRESENTED IN THE TRIAL COURT

7. The evidence that emerged in the Trial Court was as follows. The Appellant was a farmworker for the parents of the victim, MWM. He had been given a place to sleep in the compound – a room he shared with MWM’s brother.

8. The sleeping arrangements were that the victim would sleep in the room that served as the kitchen. Her mother would lock it from outside as she went to sleep to ensure that MWM was safe. The mother would then go with the key to her own room or place it in the room which the Appellant shared with MWM’s brother so that the latter would open the door for MWM in the morning.

9. MWM testified that on 05/07/2011, the Appellant made a sexual advance on her by way of a written letter. The letter was not produced in evidence. She says she declined the advance. However, later that night, at around 1:00am, the Appellant took the key to the room where MWM was sleeping, opened the door and defiled her. MWM says that she clearly saw it was the Appellant and that the Appellant threatened that he would kill her if she reported him. Consequently, MWM did not report to anyone about the incident. She woke up in the morning and went to school as usual.

10. The following two nights, the same thing. Again, MWM did not report ostensibly for fear that the Appellant would actualize his threats.

11. On 10/07/2014, MWM’s mother found, on MWM’s bed, a letter which caused her alarm. It was addressed to the Appellant and it talked of her budding relationship with the Appellant, spoke about the sexual acts they had been involved in the previous nights and pleaded with the Appellant to never tell MWM’s parents about their sexual experiences. Later that day, MWM’s parents confronted the Appellant when she came back from school. That is when she opened up about the sexual assaults.

12. The parents then reported to Gathage Police Station leading to the arrest of the Appellant. Later on, MWM was taken to Gatundu hospital for medical checkup. Dr. Eunice Mugweru performed the examination. She found her vaginal wall reddish indicating signs of trauma. She also had a torn hymen and a vaginal discharge. Her vaginal swab had pus cells indicating the possibility of a sexually transmitted disease. The doctor concluded that MWM had been defiled.

D. APPELLANT’S GROUNDS OF APPEAL

13. On Appeal, the Appellant has raised four main grounds.

14. First, he complains that the Learned Trial Magistrate misdirected himself by creating his own theories to fill in gaps in the Prosecution case. In particular, the Appellant finds the Learned Trial Magistrate’s finding that the Appellant had slept in MWM’s brother’s room where the room to the key to the room where MWM used to sleep was an invention of the Learned trial Magistrate.

15. The Appellant argues that the evidence showed that he slept in his own room and that, therefore, he had no access to the key to the room where MWM used to sleep. He says that he testified as much in his defence and that he was not challenged by the Prosecution – and uses this as a first point of defence of his theory that he used to sleep in his own room and not in the same room as MWM’s brother.

16. The argument that his own version of the story was unchallenged and therefore untrue holds no water. The Appellant elected to give an unsworn statement and therefore he could not be subjected to cross examination. He cannot, then, turn around and use the lack of cross-examination as proof of the truth of his own version of events!

17. Secondly, though, the Appellant points to the following testimony by PW2 – MWM’s mother:

“[Appellant’s] room was next to my daughters. I used to lock her room to be safe. I would go with it. When she was raped, the keys were in my son’s room.”

18. For the Appellant, this means that MWM’s brother’s room was different than the room the Appellant used to sleep in. I do not think so. The totality of the evidence is clear that in the compound, there were only three rooms: MWM’s parents apparently used to sleep in one; the other served as a kitchen and is the same room MWM used to sleep; the other room is where the Appellant used to share with MWM’s brother. Both MWM and PW2 testified straightforwardly on that and the Learned Trial Magistrate accepted their evidence as truthful. I have no reason to interfere with that finding of fact by the Trial

19. Secondly, the Appellant complains that MWM’s brother was a crucial witness who should have been called to testify. This is because, he says, PW2 had claimed that it was either she or MWM’s brother who would lock MWM’s room. It would therefore have been important for MWM’s brother to come testify to that fact.

20. The Appellant was seeking to bring himself within the holding in Bukenya & Others Vs Uganda (1972) EA 549 where the former East Africa Court of Appeal held that the prosecution has a duty to call all the witnesses necessary to establish the truth even though their evidence may be inconsistent; and that where essential witnesses are available but are not called, the court is entitled to draw the inference that if their evidence had been called, it would have been adverse to the prosecution case.

21. However, in this case, it cannot be said that MWM’s brother was a crucial or even useful witnesses to advance the Prosecution case. As the Court of Appeal stated in Keter V Republic [2007] 1 EA 135, “The prosecution is not obliged tocall a superfluity of witnesses but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.”

22. What the prosecution needed to prove in this case was that the Appellant had access to the key to MWM’s room. They did so through the evidence of MWM and PW2. There was no need to call MWM’s brother to testify to the same fact again.

23. Third, and perhaps more significantly, the Appellant complains that the Learned Trial Magistrate relied on evidence of a love letter which was never produced in Court. The Appellant says, on the strength of Kinyatti v R [1985] KLR 572, that the Prosecution is obligated to prove every assertion made and in this case the Prosecution did not prove the existence of the love letter. It was therefore wrong for the Learned Trial Court to rely on the alleged existence of the love letter.

24. On my part, I begin by observing that there were two letters. The first one was, apparently, written by the Appellant to MWM making sexual advances. This one was written on 05/07/2014. The second letter was, apparently, written by MWM to the Appellant but was discovered by MWM’s mother on MWM’s bed – and that triggered off the investigations.

25. In my view, neither letter was a crucial exhibit in the case and it was not fatal that they were not produced in evidence. The letters were referenced to show that the sexual acts between the Appellant and MWM were predicated on a prior event. The letters themselves were not needed to prove that the sexual acts occurred. Indeed, the letters seen together would probably have demonstrated that there was an element of “consensual” relationship between MWM and the Appellant. However, MWM was a ten-year old minor who was incapable of consenting to any sexual acts. Hence, the letters would have added to the strength of the Prosecution case – but their absence does not detract from the essential Prosecution case.

26. The Prosecution case is based on the evidence of MWM who testified as PW1. She testified how the Appellant went to her room on three consecutive nights to have sex with her. It is unclear to me whether the sex was violent and obtained through threats to MWM’s life as MWM claimed in her testimony or whether the Appellant had, indeed, managed to unlawfully seduce the minor to procure sex from her. However, it does not matter: what matters is the evidence established beyond reasonable doubt that the Appellant had sexual relations with MWM by inserting his penis into her vagina. That is all that is needed to rule that this element of the crime has been proved.

27. However, before, concluding that the element of penetration was proved, it is important to address the Appellant’s third complaint: it is that the Learned Trial Magistrate should not have relied on the evidence of PW3 – Dr. Eunice Mugweru – because she only examined the victim five days after the alleged offence had taken place.

28. This complaint is unavailing to the Appellant. There is no set number of days when a medical doctor is required to see a victim of sexual assault. Of course, the salutary practice is for such a victim to be examined by a doctor as soon as possible so as to preserve evidence. However, in some circumstances, such as this one, that is not possible. What matters, though, is that MWM was examined by a competent medical doctor who concluded that she had been defiled in the recent past. Indeed, she found unmistakable evidence that MWM had had sex in the past few days: she found evidence of a reddened vagina wall and pus cells in the vagina – the latter being an indication of sexually transmitted disease.

29. In order for the Prosecution to prevail on a charge of defilement, it has to prove three elements:

a. Proof of penetration;

b Positive identification of the Accused as the assailant who unlawfully caused the penetration; and c.Age of the victim.

30. As has emerged above, there was unmistakable evidence of penetration based on the evidence of MWM and PW3. Also, as has emerged above, there was positive identification of the Appellant was the perpetrator of the act. This is based on the evidence of MWM and PW2. I have found nothing in the trial court record to make me doubt the soundness of the findings by the Learned Trial Magistrate that the Appellant was the perpetrator. The Court was on solid ground in dismissing his defence as being so improbable that it cannot possibly be true. I do the same. There is simply nothing at all that suggests that MWM’s parents would conjure up a fantastical story about sexual assault on their daughter to avoid paying Kshs. 4,000 salary allegedly owed to the Appellant. In part, the testimony of MWM about what happened, which was believed by the Trial Court, blitzes this theory. Hence, looking at the totality of the evidence in context, it was safe to reject the Appellant’s story as incredible and a fabrication.

31. Finally, the age of MWM was never an issue in the trial or appeal: she produced a Birth Certificate confirming that she was ten years old.

32. In the end, therefore, after carefully reviewing the trial court record, I am persuaded that the conviction herein was safe and supported by available evidence. The sentence imposed is the only one allowed by the law so no plausible appeal can lie against the sentence and none was preferred anyway.

E. CONCLUSION, DISPOSAL AND ORDERS

33. In the end, therefore, this Court, after re-considering and re-evaluating all the evidence and the entire trial court record concludes as follows:

a. For the reasons stated above, the appeal is dismissed and the conviction is hereby affirmed.

b. The sentence imposed by the Trial Court of life imprisonment is affirmed.

34. Orders accordingly.

Dated and delivered at Kiambu this 27th day of February, 2017.

JOEL NGUGI

JUDGE