Samson Kizee v Republic [2017] KEHC 4458 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUSIA

CRIMINAL APPEAL NO. 58 OF 2015

SAMSON KIZEE ……………………..………………….…………… APPELLANT

VERSUS

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

[An Appeal against conviction and sentence dated 9th December 2015 by H.N. Ndung’u, Chief Magistrate in Busia CM Criminal Case No. 42 of 2015]

JUDGEMENT

1. The Appellant, Samson Kizee is currently serving 20 years imprisonment for the offence of defilement contrary to Section 8 (1) (4) of the Sexual Offences Act, 2006. Being dissatisfied with both the conviction and sentence he has through the Petition of Appeal dated 21st December, 2015 appealed to this Court on the following grounds: -

“1. THAT, I pleaded not guilty to the appended charges.

2. THAT, the trial Magistrate relied on contradicting prosecution witnesses’ testimonies.

3. THAT, the trial court erred in law and fact by relying on hearsay evidence ignoring the primary evidence.

4. THAT, the trial court erred in law and fact by adopting medical evidence which was in contravention to both the Evidence Act and the Sexual Offences Act.

5. THAT, the trial court erred in law and fact by ignoring the entire defence evidence.

6. THAT, the trial court erred in law and fact by ignoring the gross violations of my constitutional rights leading to unfair trial and thus a mistrial.”

2. This being a first appeal, the duty of this Court is to look at the evidence afresh in order to reach its own independent conclusion. In doing so, the Court must remember that unlike the trial Court it did not have the opportunity of observing the demeanour of the witnesses.

3. The complainant, J.K.S., testified as PW1 and told the trial Court that in February, 2015 her mother sent her to go and buy tomatoes. On the way she met the Appellant who invited her to visit him at the PAG Church. She accepted the invitation.

4. While at the Appellant’s place, they cooked and later had sex. She told the Court that after sex the Appellant told her to go to her home. She feared that she would be beaten by her mother and she instead went to stay with a lady called Beka. She was there for two weeks before her uncle N went and took her home. When she reached home, her mother demanded that she tells her where she had been. It was then that she led her mother to the home of the Appellant who admitted having been with her. The Appellant was arrested. She was taken to hospital where she was examined, treated and a P3 form filled for her.

5. PW2 JAE told the Court that the complainant is the daughter of her deceased sister. On 20th February, 2015 she was at her place of work when her brother KP took the complainant to her and informed her that she was sleeping at a construction site. She asked the complainant where she had been and the complainant informed her that she had been with a certain man who had sent her to go and collect her clothes so that he could marry her. She asked the complainant to show her the man. The next day the complainant led her to a certain house where they found four men. The complainant pointed out the Appellant as her friend. She arrested him and escorted him to the police station. On cross-examination, PW2 stated that it is Newton who took the complainant to her. She also told the Court that the complainant had disappeared form 8th up to 20th.

6. PW3 Constable Bildad Omari testified that on 24th February, 2015 he was at the Busia Police Station when one woman who was with the complainant went and reported that the complainant had disappeared from home for about three days. The woman and the complainant had gone to the Police Station together with the Appellant. He interrogated the complainant who informed her that she had been staying with the Appellant. He took the complainant and the Appellant to hospital where they were examined and treated. PW3 told the Court that it was confirmed that the complainant had been defiled. Age assessment carried out established that the girl was 13 years old.

7. PW4 Machovu Mabicha, a Clinical Officer at Busia County Referral Hospital testified that he examined both the complainant and the Appellant on 24th February, 2015. Upon examination of the complainant he found that the hymen was not intact but there were no tears. Pregnancy and H.I.V. tests were negative. There was a discharge and a urinalysis disclosed pus cells. As for the Appellant, he did not find any bruises on the penile shaft. Upon urinalysis, pus cells indicating an infection were seen.

8. In his defence the Appellant denied defiling the complainant. His evidence was that he was new in Busia and neither knew the complainant or her mother.

9. The basic question in this appeal is whether the prosecution established that the complainant was defiled and if so, whether the Appellant is the person who defiled the complainant.

10. The Appellant in his written submissions raised concerns about the quality of evidence that was used to convict him. His view is that the same was contradictory and it was not safe to base a conviction on such evidence. The State on the other hand submitted that it had satisfied all the ingredients of the offence with which the Appellant was charged by proving that the complainant who was a child aged between twelve and fifteen years had been penetrated by the Appellant.

11. Although the Appellant raised several grounds of appeal, I find that the quality and the sufficiency of the evidence is the foundation of his appeal.

12The trial Court correctly conducted voir dire examination of the complainant. The purpose of voir dire examination of a child witness is twofold. Firstly, it assists the court in establishing whether the witness is capable of giving evidence in respect of the event that is the subject of proceedings. Secondly, the examination assists the court to decide whether the child understands and appreciates the importance of telling the truth and therefore capable of giving testimony under oath.

13. On the first limb, a potential witness must demonstrate a capacity for observation, recollection and communication. If the court is satisfied that the witness meets the requirements, the court then moves to the second limb.

14. In the second limb, the court’s enquiry focuses on the child’s understanding of the obligation to tell the truth hence the concentration on the child’s ability to understand the meaning of an oath.

15. Upon examination of the witness on 29th June, 2015 the court formed the opinion that the witness did not appear to understand the duty to tell the truth. The Court directed that the witness would give unsworn evidence which the Court would give “little evidential value”.

16. The witness then went ahead and testified that: -

“I recall February, 2015 I was at the home of my mother at [particulars withheld] Village. My mother AZ sent me to buy tomatoes. On the way I met the accused person. He invited me to go and visit him at P.A.G. Church. We went. We talked. We cooked, ate and stayed. I then slept there in a room of his friend.”

17. At that juncture the prosecutor told the Court that the witness was becoming difficult and he needed to talk to her. He asked for an adjournment. The application for adjournment was allowed. The Court remarked that: -

“Complainant warned that if she does not give evidence on that date the court will discharge the accused.”

18. When PW1 resumed her evidence on 3rd November, 2015 she continued as follows: -

“Last time I told the court I slept with the accused person. I meant that we had sex. After sex the accused told me to go back home. I did not go back home. I feared to go back home. I knew my mother would beat me up. I went to see my friends. I stayed for two weeks with one Beka. Beka is a lady. Then my uncle N took me to my mother. My mother beat me up.”

19. What clearly emerges from the record is the clear disconnect in the evidence of this witness. There is a good reason for this. She testified under coercion from her mother, the prosecutor and the trial Court. When she entered the witness box for the second time she testified that she had earlier told the Court that she had sex with the Appellant. A perusal of her initial testimony shows that she never mentioned any sexual engagement with the Appellant. She actually told the Court that she slept in the house of the Appellant’s friend.

20. In her judgement, the trial Magistrate stated that: -

“In this case I heard both the accused and the complainant. I observed the demeanour of the complainant and of the accused and I believed her evidence that the accused had invited her to his house. There he had sexual intercourse of her and then dismissed her telling her to go back to her home. On the evidence I am satisfied beyond any reasonable doubt the accused is guilty as charged. I convict him as by law provided.”

21. Earlier, the Magistrate had cited Section 124 of the Evidence Act, Cap 80 and observed that corroboration was no longer required in sexual offences. Section 124 states: -

“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of the alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused person 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.”

22. Section 19 of the Oaths and Statutory Declarations Act, Cap15 provides that: -

“19 (1) Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.

(2) if any child whose evidence is received under subsection (1) willfully gives false evidence in such circumstances that he would, if the evidence had been given on oath, have been guilty of perjury, he shall be guilty of an offence and liable to be dealt with as if he had been guilty of an offence punishable in the case of an adult with imprisonment.”

23. Section 19 of the Oath and Statutory Declarations Act provides the basis for voir dire examination of a child witness. Section 124 of the Evidence Act states the need for corroboration before conviction in criminal cases. However, in sexual offences conviction can solely be based on the evidence of the victim provided the court for reasons to be recorded in the proceedings reaches the conclusion that the victim is telling the truth.

24. The trial Magistrate arrived at the conclusion that the complainant was telling the truth based on the demeanour of the complainant and the Appellant. The law requires that the reasons for believing a child witness must be recorded in the proceedings. I would add that a judgement is the best place to state why the court believes that a witness is telling the truth.

25. The question is whether the demeanour of the complainant was in the circumstances of this case sufficient to make the court conclude that she was telling the truth. In my view, there was need to consider the evidence adduced by the prosecution as a whole. Let me point out some contradictions that emerged from the evidence. The complainant stated that she stayed with the Appellant before moving to the house of one Beka. The testimony of PW2 and PW3 gave the impression that the complainant was collected from the house of the Appellant by her uncle. There is even contradiction as to the name of the uncle who rescued the complainant. The complainant talked of Newton but PW2 talked of KP. It is only during cross-examination that PW2 talked of Newton but she never explained whether KP and N was one and the same person.

26. Turning to the medical evidence, the P3 form filled for the complainant does not have any opinion of the medical officer as to whether the complainant had sex. In his testimony PW4 did not state his opinion as to whether the complainant had sex. The trial Magistrate however concluded the complainant and the Appellant had a “sexually transmitted infection that appeared to be of a similar nature.” She then proceeded to conclude that the medical evidence therefore connected the Appellant to the offence. In my view, this conclusion was misconceived. The clinical officer never stated that the infection the Appellant had was similar to that of the complainant. Even if they had a similar infection, such evidence could only be used to corroborate a strong case. It could not be used to support a weak case. The trial Court’s conclusion was therefore speculative in nature.

27. The general outlook is that no evidence was adduced to show that the complainant had sex. Her testimony was so contradictory that it would be unjust to rely on the same to convict the Appellant. There was also no evidence to show that there was a sexual liaison between the Appellant and the complainant. The trial Court also erred in convicting the Appellant upon the evidence of the complainant yet she had clearly concluded that the complainant was not a truthful person.

28. This appeal therefore succeeds. The conviction is quashed and the sentence is set aside. The Appellant is set at liberty forthwith unless otherwise lawfully held.

Dated and signed at Malindi this 27th day of June, 2017.

W. KORIR,

JUDGE OF THE HIGH COURT

Dated, signed and delivered at Busia this 12th day ofJuly, 2017.

K. W. KIARIE,

JUDGE OF THE HIGH COURT