[2022] KEHC 14681 (KLR)

SB v Republic (Criminal Appeal E056 of 2022) [2022] KEHC 14681 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14681 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E056 of 2022

TW Cherere, J

November 3, 2022

Between

SB

Appellant

and

Republic

Respondent

(An appeal from the conviction and sentence in Nkubu Criminal S.O No. 38 of 2020 by Hon. E.Ayuka (SRM) on 23rd February, 2022)

Judgment

1. SB (appellant) was charged with defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No 3 of 2006 (the Act). Appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No 3 of 2006. The offences were allegedly committed on June 8, 2020 against EN a child aged 15 years.

2. Complainant stated that on June 8, 2020, appellant found her in her bedroom at her father’s home, gagged her with bandages that had wrapped his hand and defiled her. Two weeks later, she started to feel sickly and when she went to hospital was informed that she was pregnant and accused who is brother to her father and whom she had previously met when she visited her grandmother was arrested and charged. Around July 21, 2017, complainant’s grandmother upon noticing that complainant was vomiting and looking sickly escorted her to hospital where she was confirmed to be pregnant. That upon interrogating complainant, she informed her that appellant was responsible for the pregnancy. The matter was reported to the assistant chief who on July 27, 2020 arrested appellant and handed him over to PC Mweni who caused appellant to be charged. The officer tendered complainant’s certificate if birth which showed that she was born on September 13, 2004. Complainant was examined on August 21, 2020. A P3 tendered in evidence revealed that her hymen was broken and the lab tests revealed she was 14 weeks and 3 days pregnant.

3. Appellant in his sworn defence denied the offence. He stated that he arrived home at 11. 00 pm and found complainant outside the house. He stated that there are many people at the home complainant alleges to have been defiled and the offence could not pass unnoticed. He additionally stated that as at the material time, he had a fractured hand and could not have been able to commit the offence. His witness stated that complainant was already pregnant when she alleges to have been defiled.

4. After considering both the prosecution and defence cases, the learned trial magistrate found the prosecution case proved and on February 23, 2022 convicted and sentenced appellant to serve 25 years’ imprisonment

5. Dissatisfied with both the conviction and sentence, appellant lodged the instant appeal on grounds that:i.Voire dire examination was not properly conductedii.DNA was not conducted to link him to complainant’s unborn babyiii.The P3 form was not tendered by the makeriv.Identification was doubtfulv.Broken hymen is not proof of penetrationvi.Defence was not given due consideration

6. This being a first appeal, the court is expected to analyze and evaluated afresh all the evidence adduced before the lower court and draw its own conclusions while bearing in mind that it neither saw nor heard any of the witnesses. See Okeno v Republic [1972] EA 32, Pandya v Republic [1957] EA 336 and Kiilu & Another v Republic [2005]1 KLR 174.

7. The elements constituting the offence of defilement are proof of penetration, the age of the minor and the identity of the assailant (See C W K v Republic [2015] eKLR).

Voire Dire Examination 8. Section 19 of the Oaths and Statutory Declarations Act cap 15 of the Laws of Kenya 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 theCriminal Procedure Code (cap 75), shall be deemed to be a deposition within the meaning of that section. (Emphasis added).

9. “A child of tender years” is described under section 2 of the Children’s Act as “a child under the age of 10 years. Complainant was 15 years when she testified and was therefore not a child of tender years whose evidence ought to have been subjected to voire dire examination.

DNA 10. Courts have developed jurisprudence that it is now trite that DNA is not necessary to prove a fact of rape or defilement. (See the Court of Appeal decision in A M L v Republic (2012) eKLR. It therefore follows that failure to conduct DNA testing was not fatal to the prosecution case

Age of Complainant 11. It is trite that the age of a minor is a critical component of a defilement charge and that it is an element which must be proved by the prosecution beyond reasonable doubt. (See Kaingu Kasomo v Republic Criminal Appeal No 504 of 2010).

12. Proof of the age of a victim of defilement is crucial because the prescribed sentence is dependent on the age of victim. (See Hadson Ali Mwachongo v Republic Criminal Appeal No 65 of 2015 [2016] eKLR & Alfayo Gombe Okello v Republic Cr App No 203 of 2009[2010] eKLR.

13. Complainant’s certificate if birth which shows that she was born on September 13, 2004 and was therefore 15 years as at the date she was allegedly defiled.

Penetration 14. Section 2 of the Act defines penetration to entail: -“partial or complete insertion of a genital organ of a person into the genital organ of another person.”

15. The P3 form PEXH 1 reveals that complainant had torn hymen and was pregnant and I find that the trial magistrate correctly found that penetration was proved.

Appellant’s Culpability 16. In the case of Stephen Nguli Mulili v Republic [2014] eKLR the Court of Appeal had this to say regarding reliance on section 124 of the Evidence Act to convict:“as a general rule of evidence embodied in Section 124 of the Evidence Act, an accused person shall not be liable to be convicted on the basis of the evidence of the victim unless such evidence is corroborated. The proviso to that section makes an exception in sexual offences and provides as follows:“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.” (emphasis added).

17. Appellant is brother to complainant’s father and the fact that appellant was not a stranger to the complainant was conceded by appellant. It was complainant’s evidence that she conceived upon being defiled by Appellant. That complainant was pregnant when she was examined on August 21, 2020 is not disputed.

18. According to the clinical officer, the lab tests revealed complainant was 14 weeks and 3 days pregnant when she was examined on August 21, 2020. Simple arithmetic however shows that it is 9 weeks and 6 days between the date complainant was allegedly defiled and the date she was examined and not 14 weeks and 3 days.

19. Clearly, the complainant’s evidence that appellant was responsible for the pregnancy cannot be truthful especially considering that there was no evidence that appellant had defiled complainant before June, 2022. The trial magistrate’s finding that complainant’s evidence was not dislodged was in my view made in error.

20. From the foregoing, I find that the prosecution did not prove beyond any reasonable doubt that appellant not only defiled complainant but also made her pregnant. The defence therefore cast doubt on the prosecution case and ought not to have been rejected.

21. Accordingly, and for the reasons set out hereinabove, this appeal succeeds. The conviction is quashed and the sentence set aside. Unless otherwise lawfully held, it is ordered that the appellant be set at liberty.

DELIVERED AT MERU THIS 03RD DAY OF NOVEMBER 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - KinotiAppellant - Present in personFor the State - Ms. Mwaniki (PPC)