[2024] KEHC 12062 (KLR)

Republic v Nangoye (Criminal Case E055 of 2023) [2024] KEHC 12062 (KLR) (8 October 2024) (Judgment)

Neutral citation: [2024] KEHC 12062 (KLR)

Republic of Kenya

In the High Court at Malindi

Criminal Case E055 of 2023

SM Githinji, J

October 8, 2024

Between

Republic

Respondent

and

George Mitikowea Nangoye

Appellant

((Being an appeal against the Ruling in SPM’s Court at Kilifi Sexual Offence Case No. E095 of 2022 before Hon G.O.Kimanga – Principal Magistrate delivered on 18th August, 2023))

Judgment

1The Respondent herein, one George Mitikowea Nangove was charged in the lower court with three counts and one alternative count, all under the Sexual Offences Act No.3 of 2006 as follows; -

2Count one is of defilement, contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act No.3 of 2006.

3The particulars of this offence being that on unknown date in the month of September, 2021 at Marereni area in Magarini Sub-County within Kilifi County, the respondent intentionally and unlawfully caused his penis to penetrate the vagina of S.R.F a child aged 16 years.

4In the alternative to the said count, the respondent 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.

5The particulars of this offence are that on unknown date in the month of September, 2021 at Marereni area in Magarini Sub-County within Kilifi County, the respondent intentionally and unlawfully touched the vagina of S.R.F a child aged 16 years.

6In count two the Respondent was charged with the offence of Sexual Assault contrary to section 3 (a) (1) as read with section 3 (2) of the Sexual Offences Act No.3 of 2006.

7The particulars hereof being that on unknown date in the month of September, 2021 at Marereni area in Magarini Sub –County within Kilifi County, the respondent intentionally and unlawfully used his fingers to penetrate the vagina of S.R.F a child aged 16 years.

8The third and last count is of abuse of position of authority, contrary to section 24 (2) (c) of the Sexual Offences Act No.3 of 2006.

9The particulars of this offence are that on unknown date in the month of September, 2021 at Marereni area in Magarini Sub-County within Kilifi County, the respondent took advantage of his position as a police officer to have sexual intercourse with S.R.F, a child aged 16 years, who was in his custody.

10Briefly, the prosecution case is that the complainant herein who gave evidence as Pw-1 was born on 14th September, 2005. A copy of her birth certificate No.8970253 was produced as exhibit -1. The offence according to her took place in the month of September, 2021 on a date of which she could not remember. At the time of the said offence she was therefore either 15 or 16 years old depending on the actual date in September when the offence took place.

11An age assessment done at Malindi Sub-County Hospital on 11/1/2022 placed her age then at 16 years. She also said in her evidence-in-chief on 27/2/2023 that she was about 16 years old. She was living at Marereni in Kilifi County with her mother. The mother is said by her, to have had a love relationship with the accused who was a police officer at Marereni Police Station. Another police officer (Pw-3) at the said station owned motor vehicle Registration No.KBW 986F, aMitsubishi io of which he allowed other officers to use privately and at times for official duties. The accused had used it as such several times.

12The complainant and her mother had disagreed due to complainant’s alleged indiscipline. The mother was in the habit of calling in the accused to threaten and discipline her.

13In September, 2021 at about 3. 00Pm the complainant was sent by her mother to go and open a shop. She went there with her clothes for cleaning. After cleaning the clothes, she took them to Dobi for ironing. She returned to the shop and sold Mogoka till 7pm. She then closed the shop and went to Dobi to collect her clothes. They were still not ready. She went home and found the mother and an uncle called Ali Dame, chewing miraa (khat). It was late and she was questioned as to where she was. The mother had accused her before of having boyfriends and had confiscated her phone for investigations. She said she will call the accused to pick her for discipline. She called him and he said he will come for her.

14That night while she was asleep, the mother woke her up. She alleged the accused had arrived to pick her. The accused was driving a white “prado” which was parked at the gate. She boarded the vehicle and he left with her. He went near the salt company where he stopped. He instructed her to leave the back seat and get to co-driver’s seat. He talked to her and slapped her questioning why she was troubling the mother. He then lowered his trousers and instructed her to fondle his penis. She did so. He hit her whenever she stopped fondling it. He locked the vehicle and instructed her to remove her panties. She did so. He slanted the seat, went on her and penetrated her genital organ namely vagina, using his penis. She felt pain and bled. He only stopped when he heard some people approaching on their way to the salt factory. He warned her not to tell anyone. He promised to buy her clothes, sanitary pads and to give her money. He then drove her back home and instructed her to clean her clothes of which she did.

15The following day she reported to her mother. The mother however beat her up and gave her punishment. On the 3rd day she felt unwell. She went to Marereni dispensary where she was given 2 tablets.

16After one month the complainant ran away to the house of her aunt who gave evidence as Pw-6 (Hadija Boch Abarea). She informed her about the incident. The aunt informed her husband called Ismael. Ismael called the complainant’s mother about it but she did not co-operate. After 3 weeks the complainant was taken back home. The issue was explained to her mother but she protested saying the complainant will get married. However, on 6th the mother took her to Marereni Police Station at about 7. 00Pm. The mother wanted her detained at the place but the officers declined. An officer called Julius listened to her as well as a children’s officer. She was taken to Bob Francis Rescue house in Malindi. On 11/1/2022 Pw -2 took her to Malindi Sub-County Hospital for age assessment which was done. On 12/1/2022 she was referred to police station where the incident was reported and a P-3 form issued. Pw-4 examined her and noted she was on her periods then. Her hymen was broken. Urine examination revealed presence of red blood cells. The clinical officer concluded there was vaginal penetration. He thus filled the P-3 form which was produced as P-exhibit 3.

17Given that the matter involved a police officer there was a lot of interference with investigations at the station. This raised public concern and IPOA intervened by taking up the matter. There were several investigating officers for the given reason who are Pw-7, Pw-9 and Pw-10.

18The scene was revisited and with the help of the complainant reconstructed. Photographs were taken of the place and the complainant’s home. The vehicle involved was also traced in a garage where it had been taken for repairs and photographed. The complainant positively identified it as the one she referred to as a white “prado”. After conclusion of the evidence, the accused was charged with the offences carried in the charge sheet.

19The trial court in it’s ruling found that he had no case to answer and accordingly acquitted him under section 210 of the Criminal Procedure Code.

20The prosecution dissatisfied with the said finding appealed to this court on the grounds that; -1. The trial court erred in finding that the complainant’s evidence was not corroborated which is in breach of section 124 of the Evidence Act.2. The trial court erred in fact in finding that there was bad blood between the complainant and the accused leading to fabricated evidence.3. The learned trial magistrate erred in finding that the other witness’ evidence was purely circumstantial and it did not prove that the accused committed the offence.4. The learned trial magistrate erred in finding that recalling the complainant to identify clothes which were not subjected to DNA analysis was an afterthought to construct the prosecution’s case.

21I have re-evaluated the charges, evidence adduced by the prosecution witnesses and the ruling of the court dated 18/8/2023. I have as well considered the grounds of the appeal and the submissions by both sides.

22In acquitting the accused/respondent under section 210 of the Criminal Procedure Code, the court held the position that the prosecution evidence did not establish a prima facie case against him. The appeal against the finding therefore calls upon this court to re-evaluate the evidence and find whether it establishes a prima face case against the Respondent.“Prima facie” is a latin phrase meaning “at first sight” or “on the face of it”. It implies that if on the face of the presented evidence, there appears to be a valid case to answer, then accused need be placed on his defence and vice versa.

23In Ramanlal Trambaklal Bhatt=versus=R [1957] EA 332, the court held that a prima facie case is established where the evidence tendered by the prosecution is sufficient on it’s own for a court of law to return a guilty verdict even if the accused opts to remain silent.

24In a case of defilement which was preferred in Count 1, the three ingredients that need be established beyond reasonable doubt are; -1. The age of the victim who must be a minor below the age of 18 years.2. Penetration, which is partial or complete insertion of the genital organs of a person into the genital organs of another person.3. Reliable recognition or identification of the accused as the real culprit.

25Section 124 of the Evidence Act provides that; -“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act (Cap 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him.”“Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”

25It therefore follows that in a Sexual Offence, so long as the court is satisfied that the victim is telling the truth and records such in the proceedings, the evidence needs not be corroborated.

26In this case the victim’s evidence is well corroborated in terms of her age. There is an age assessment report which places the age at 16 years. The birth certificate also shows she was about 16 years old just as she disclosed in her evidence.

27Penetration is well disclosed in her evidence which reveals logical and chronological details of how it took place. The P-3 form supports her evidence that she was penetrated.

28She knew the accused well before then as a lover to her mother. He had picked her before on disciplinary grounds. She did not claim he had defiled her before, save for this particular incident. She could not have made a mistake of him and her evidence in my view establishes a prima facie case against him in Count 1, even if it were uncorroborated on the three vital ingredients of the offence. The trial court therefore erred in law and fact in holding that the prosecution had failed to establish a prima facie case against the respondent in all the counts. Accordingly, the appeal is merited and succeeds in it’s entirety.

29The lower court finding of acquittal under section 210 of the Criminal Procedure Code is quashed, and the respondent is consequently placed on his defence in relation to Count 1.

30The matter will be reopened for further hearing at Garsen Law Courts before the Magistrate in charge of the station.

31Mention before the said court on 17/10/2024 for further directions where the Respondent should be present in person/physically.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 8TH DAY OF OCTOBER, 2024S.M. GITHINJI__JUDGEIn the Presence of; -PARA 1. Mr Mwangi for the Appellant.PARA 2. Mr George Mitikowea Nangoye(Respondent).Malindi HCCRA. No.E055 of 2023 - Judgment Page 3