[2017] KEHC 4459 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KABARNET

HCCRA NO. 92 OF 2017

(FORMERLY ELDORET HCCRA NO. 73 OF 2017

SHABAN MUTUA KIPTUI......................................................APPELLANT

VERSUS

REPUBLIC............................................................................RESPONDENT

[An appeal for original conviction and sentence by the Kabarnet Principal Magistrate’s

Court (Hon. E. Kigen, RM) on 10th June 2015 in Criminal Case No. 686 of 2015]

JUDGMENT

1. The appellant was convicted for two counts of defilement and sexual assault under section 8(1) as read with 8 (2) and 5 (1) (a) (i) as read with 5 (2) of the Sexual Offences Act, 2006 and sentenced to imprisonment for life and for a term of 10 years, respectively, both sentences running concurrently.

2. The counts of the charge are set out in full below:

“COUNT I: DEFILEMENT CONTRARY TO SECTION 8(1) AS READ WITH SECTION 8(2) OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006.

PARTICULARS

SHABAN MUTUA KITUI: On the 8th day of August, 2014 at[particulars withheld] in Kabarnet Division within Baringo County did unlawfully and intentionally cause his penis to penetrate the vagina of S A a girl aged 5 years in contravention of the said act.

COUNT II: SEXUAL ASSAULT CONTRARY TO SECTION 5(1) (A) (1) AS READ WITH SECTION 5 5(2) OF THE SEXUAL OFFENCES ACT NO 3 OF 2006.

PARTICULARS

SHABAN MUTUA KIPTUI: On the 8th day of August 2014 at[particulars withheld]in Kabarnet division within Baringo county did intentionally and unlawfully penetrate the vagina of S.A a girl aged 5 years using his finger in contravention of the act.”

3. The evidence presented before the trial Court is set out below. The Prosecution witnesses testified as follows:

1. “S A (PW1) lives in [particulars withheld] with T, S and S; she is aged 5 years old. PW1 attended SDA top class and Catholic Church. On the 8th of August 2014, she was swinging at F’s home; others were in the house, Shaban called her to [particulars withheld] place. Shaban sat on a stone and made S sit on him, he then inserted his finger then his penis in her vagina. She cried then he stopped. He wiped himself with a white paper and threw it in the dustbin; he zipped his trouser and went to his house. Mama F (PW3) came and she told her what happened. PW1 was taken to Kabarnet town then after to Kabarnet District Hospital where she received medication and reported the same to the police. PW1 stated that she did not see any blood but felt a lot of pain. PW1 also stated that the accused had done the same before in their house and she reported the same to her mother.

PW1 was cross examined by Mrs. Chesaro for the accused and stated that earlier that day she had come from school; Shaban called her to where he was that was at [particulars withheld] kitchen. G N was at F’s place.

PW1 also stated Shaban had done the same before and that when she inserted his finger in her vagina she screamed and the accused ran to his home. She did not mention this to anyone.

She was re-examined and stated that when she screamed mama F (PW3) come to her rescue

2. Benjamin Kendagor (PW2)is a clinical officer at Kabarnet District Hospital. On 9th June 2014, he examined a patient S A accompanied by her mother on allegations of being defiled by a person known to her. Her mode of walking was not proper, she had pain on her lower side of the abdomen, broken hymen, tear on the posterior wall both labia were swollen, there was whitish discharge no spermatozoa, urinalysis showed traces of proteins. He concluded there was penetration. The patient had been seen in the morning by a colleague. He did a re-examination to the patient and relied on his own treatment notes

On cross-examination by Mrs. Chesaro, he stated his intern made the first examination, he did the second, PW1 had changed her initial clothes

He was re-examined and stated trainees examine patients but under supervision.

3. J N (PW3) is a Salonist residing in [particulars withheld]. S as well as Shaban are her neighbors. On 8th August 2014 at 3. 00 p.m. she was at her house PW1 was playing outside on a swing. Shaban come and picked PW1, she heard sounds coming from a neighboring unoccupied plot, she went back to check and found Shaban zipping his trouser. He had a white paper which he had used to wipe himself and left. PW3 inspected PW1 and found that she had a crack on her private parts, her inner clothes were wet and blood stained. She was not walking well either. She called PW1’s sister and a neighbor (M) they changed her clothing (a dress and a white trouser) and took PW1 to her mother in Kabarnet town. PW3 also stated that she picked the white paper the accused used in wiping himself from the dustbin.

PW3 was cross-examined and stated her house is 10 meters away from mama N’s plot separated by a fence, she saw Shaban going towards the child, she heard screams, she went to the plot, Shaban was standing while PW1 was sitting down, they were both in the bathroom the child was crying her clothes were half way to the ground, her shoes were on the floor. The blood stain was on the crack. Shaban did not run rather walked away slowly. She saw Shaban (accused) helping the minor off the swing.

4. C A O (PW4) operates a salon at [particulars withheld], S.A (PW1) is her daughter, she resides in [particulars withheld]. The accused is her neighbor. On 8th August 2014 at 3. 00 p.m. Mama F (PW3) and M (another neighbor) brought her child (PW1) to her, she was crying. The women told her what transpired. She observed the child (PW1); her vagina had a crack and could not walk well. She escorted PW1to Kabarnet District hospital where she received treated and was instructed to come back the following day. Later she went to Kabarnet police station to report the same. At night the mother and sister to Shaban went to PW4’s house to ask for forgiveness. She told them to allow her treat the child (PW1) first. She went to Kabarnet District Hospital the following day at 9. 00 a.m. for reexamination; she filed a P3 Form and took to the police station. She directed the police officers to accused home and arrested him.

PW1 told her that the accused had inserted his penis in her vagina and wiped her using clothing, this occurred during the school holidays. PW4 stated that PW1 urinated uncontrollably. She handed the white paper given by PW3 at the police station.

On cross examination PW4 stated that she had stayed with PW1 since she was 6 months old. She arrived home at 8. 00 p.m. and found that the child’s clothes (PW1) were washed at 3. 00 p.m. by her other children.

She has known Shaban (accused) close to 5 years; he works for mama K who is her neighbor at the same plot. They had never quarreled with the accused. The child was observed by two doctors, Dr. Kandagor observed the child on the second day and filed the P3 form. PW1 was attributed to ARV’s for 28 days and that it is the eye witness (PW3) who brought the child to town

5. Everlyn Imale Agufa No. 95393 PC (PW5) is attached to the children department at Kabarnet Police station. On 8th August 2014 at around 8. 15 p.m. the complainant in company of her mother went into the station on allegations of being defiled. PW1 walked with difficulties. The mother handed her the treatment notes as she made the statements. PW5 called for other witnesses. They arrested the accused the following day and charged him with the present offence. An age assessment confirmed the child at 5 years of age

PW5 was cross examined by Mrs. Chesaro and stated the accused was at his house when arrested and she did not find out the state of mind of the accused.

4. For the defence the accused and 5 other witnesses testified as follows:

1. Shaban Mutua (DW1) gave a sworn statement stating he is 29 years of age and looks after his mother’s cows. On 28th August 2014, at about 12. 00 noon he went to the mosque, at about 2. 00 p.m. (he gives another time) at about 11. 00 a.m. he took a shower then he left for stage at the miraa shop in town with H and A until 4. 00 p.m. They went back to the mosque. At 5. 00 p.m. then he left for home to feed his grandfather. He does not know a child by the name S A, he first saw PW1’s mother at the police station, he also doesn’t know PW3 (mama F) but has heard about her and refuses he was not found with the child. His house and complainants house is separated by several houses about 100 meters. He did not go at F’s place or visit mama N’s home. He received information at 4 pm the following day. On cross examination, he stated he lives with his mother, sister M, his late grandfather used to live with them too. A his big sister lives next to the complainant, he did not visit his sister that day. He knows Mama F (PW3) is the neighbor of his sister.

2. J A (DW2) lives in Ratabei Kapropita, he states that on 8th August 2014 at about 12. 30 p.m. he had gone to the mosque. At about 2. 00 p.m. together with accused and H A and others went to a miraa shop at stage. They then went back to the mosque at 4. 00 p.m. and about 4. 30 p.m. they parted ways, DW1 went home. They learnt of DW1’s arrest the following day. DW2 was cross examined and stated, he has known DW1 for 5 years, he knows mama F (PW3) and g N and complainants DW1 also knows them. Being re-examined he stated Shaban (DW1) knows all the neighbors.

3. H A (DW3) lives in Ratabei and attends Bondeni mosque. On 8th August 2014, he was at the mosque with Shaban (DW1) and A. At 4. 00 p.m. they went to stage at the miraa shop they then went back to the mosque. He learnt of Shaban’s arrest the following day. He knew DW1 and her mother from before. He stated in his cross examination that Shaban knows mama Fidel (PW3).

4. Asha Mutua (DW4) is the elder sister to the accused, lives in [particulars withheld]. On 8th August 2014, she was at her house in [particulars withheld], the accused did not visit that day. She Stated at about 3. 30 p.m. she left for town, on her way she passed by mama F’s (PW3) house she was drunk. At 7. 30 p.m. she returned to her house but did not hear anything about Shaban (DW1). She heard the report the following day at about 4. 00 p.m. She was cross examined by the prosecution and stated she doesn’t know if Shaban knows mama S.

5. M N (DW5) lives in [particulars withheld]. G N is her mother. That day mama N (g N) was not home during the day, they went home together at 8. 00 p.m. She was cross examined and stated that if anyone went to her home nobody will notice. She stated being examined by Mrs. Chesaro for the accused that she was told the incident happened at gogo’s house.

6. Sakina Mutua (DW6) is sister to the accused and lives in [particulars withheld]. On 8th August 2014, he saw Shaban with his friends for the mosque. At 4. 00 p.m. he called Shaban to come feed their grandfather. He stated on his cross examination by the prosecution that he cannot account where Shaban was that day between 2. 00 p. m. and 4. 00 p.m.

5. The appellant appealed citing several grounds of appeal in his petition of appeal dated 17th June 2015 as follows:

“GROUNDS OF APPEAL

1. That your lordship I pleaded not guilty at trial

2. That the learned magistrate failed to take into account that I was not examined by a doctor to prove if I was the one who defiled the minor.

3. That the learned trial magistrate erred in law and fact in convicting and sentencing the appellant on a poorly investigated case of such magnitude.

4. That the learned trial magistrate erred in law and fact by convicting the appellant without observing that some crucial witnesses were not summoned to the prosecution case.

5. That my lordship the trial court failed to note that the evidence adduced by the doctor who examined the complainant did not corroborate with the ones on the charge sheet.

6. That my lordship the trial court erred in law and fact by sentencing the appellant on a defective charge.

7. That the learned magistrate erred in law and fact by dismissing my defence without giving congent reason of rejecting it.

8. That my lordship the learned magistrate did not consider the evidence adduced by my defence witnesses.”

Submissions by the Parties

6. At the hearing Counsel for the Parties made submissions and Judgment was reserved. Counsel for the appellant Mr. Chebii urged that there was no corroboration of the evidence of the minor complainant aged 5 years; that Treatment notes expunged from the record were the basis of the P3 form produced by the Clinical Officer; that the testimony of the minor was self-contradictory that while she said she was called and at another time that she was picked by the accused; that the medical report did not indicate blood on examination yet PW3 testified that the child’s inner clothes had blood; that the soiled clothes, and Exhibits of white paper in polythene bag given to the police were not produced in evidence; that the Investigating Officer did not visit the scene; that the child’s statement that she had on the material day gone to school and back home while the incident is alleged to have occurred on 8th of August when schools are usually closed; that there was possibility of coaching in the PW1’s statement that ‘my mother told me to say everything’; that failure to call material witnesses of Mwanaisha who together with PW3 had taken the child to the mother and other children who were present at the incident indicated that their evidence would be against the prosecution case; and that Magistrate disregarded the defence witnesses evidence on alibi.

7. For the Director of Public Prosecution (DPP), Ms. Macharia Assistant Deputy Director of Public Prosecution, opposed the appeal and submitted that there was corroboration in the evidence of PW2 and PW3 because of the nature of the injury; that PW2 did not rely on the treatment notes to make the P3 form report and had examined the complainant himself and therefore submitted, in effect, that their concurrent findings are coincidental; that on voire dire examination – the Magistrate’s finding is not invalidated by reason that the question on oath was not directly put to the child; that for the child who was 5 years old only and it matters not whether the child was picked or called by the appellant; that non production of the white paper is not fatal as there was sufficient evidence to convict the appellant; that the complainant was told to tell the whole truth and it does not mean that she was coached; that Conduct of appellant is walking away after the incident does not prove that he did not commit the offence; that as regards the scene of alleged offence. There was no contradiction as there is a house which is usually closed and one which is open; that the court only dismissed the defence by the appellant that he did not know the complainant and the dismissal of the defence was proper on the ground that it was raised late in the proceedings and the court did not rely on the evidence of knowledge of the appellant; and that Section 124 of the Evidence Act the evidence of the complainant alone could be used to convict if the court believed it to be true for reasons to be recorded.

Issues for determination

8. The Court must at the outset determine whether the evidence of the minor child was properly received because its finding will determine whether the trial was defective and whether retrial should be ordered. If the evidence of the child was properly received, then the appellate court will in accordance with its duty as a first appellate re-evaluate and analyze the evidence and make its own conclusion as to whether the offence is proved against the appellant before making a determination whether the finding of the trial court will be affirmed or set aside. See Okeno v. R [1972] EA 32.

Determination

9. The trial Court conductedvoire dire examination on the 5 year old child on a question-answer - format, as follows:

“30/9/2014

Coram Before E. Kigen, RM

Court Clerk- Joan

Accused: present

Mrs Chesaro – for the accused

Court Prosecutor: I am ready with three witnesses.

PW 1

1. What is your name?

S

2. Do you go to school?

Yes at SDA

3. What class are you in?

I am in top class.

4. What is the name of your teacher?

Teacher L

5. How old are you?

Five

6. Do you go to church?

Yes Catholic Church

7. Where do children who tell lies go to?

To Satan

Voire dire complied-

The minor is aged about 5 years old although she understands the meaning of telling the truth she does not understand the meaning of giving evidence under oath and also due to the tenderness of her age. She will give unsworn evidence.”

10. Even though there was no direct question put to the child regarding her understanding of the nature of the oath, the Court ruled that she did not understand the meaning of giving evidence on oath and directed that she gives unsworn evidence. Such a finding must have been based on the court’s observation of the child as to tenderness of age. No prejudice can be claimed for her being allowed to testify unsworn her as the appellant was allowed to cross-examine her at length through her through his Counsel.

11. It is now settled that failure to observe the provisions as to voire dire does not automatically vitiate the conviction. See Court of Appeal decision in Maripett Loonkomok v Republic[2016] eKLR where it was held as follows:

“We turn to consider the effect of failure by the trial court to administer voir dire on the complainant. It is firmly settled that not in all cases that voir dire is not administered or is not administered properly the entire trial would be vitiated. This Court sitting at Nyeri has recently reiterate what has been said many times before that that question will depend on the peculiar circumstances and particular facts of each case. See James Mwangi Muriithi v R, Criminal Appeal No.10 of 2014. Section 19 of the Oaths and Statutory Declarations Act is concerned with the reception and admissibility of evidence of a child of tender years. The section starts by declaring that where the child does not, in the opinion of the court understand the nature of an oath, his evidence may nonetheless be received though not given upon oath. But that evidence shall only be received if, again in the opinion of the court the child is possessed of sufficient intelligence to justify the reception of the evidence and also if, the child understands the duty of speaking the truth. So long as that evidence, though not on oath, is taken down in writing, it amounts to a deposition under section 233 of the Criminal Procedure Code. The Code does not prescribe the precise manner of ascertaining and determining whether the child witness understands the nature of the oath or is possessed of sufficient intelligence or even his or her ability to understand the duty of speaking the truth. Voir dire, a latin phrase (verum dicere) for saying “what is true”, “what is objectively accurate or honest” has been used in most Commonwealth jurisdictions and in some instances in the United States of America, as “a trial within a trial”, a hearing to determine the admissibility of evidence or the competency or qualification of a witness or juror See Duhaime, Lloyd. “Voir Dire definition” Duhaime’s Legal Dictionary. But the origin of the rule on voir dire examination of a child witness as we know it today was first applied in the ancient yet landmark English case of R v Braisier (1779) 1 Leach Vol. I, case XC VIII, PP 199 – 200, which incidentally was a case involving sexual assault on a girl under 7 years of age. The twelve Judges in that case stated, in part, that; “.. an infant, though under the age of seven years, may be sworn in a criminal prosecution, provided such infant appears, on strict examination by the court, to possess a sufficient knowledge of the nature and consequences of an oath… for there is no precise or fixed rule as to the time within which infants are excluded from giving evidence”(our emphasis)

Although this decision, through section 19 of Oaths and Statutory Declarations Act underpinned the legal practice in relation to children’s testimony in Kenya, we reiterate that the format and procedure of testing the intelligence, and sufficient knowledge and nature of the oath has been varied. For instance, in the past the courts insisted that voir dire examination must be in the form of a dialogue, with the trial court recording questions posed to the child and the child’s answers nearly verbatim in the first person before drawing its conclusion on the question of suitability of the child. See Johnson Muiruri v R (1983) KLR 447. The courts today accept both the question and answer format and the recording of the child’s answers only. See James Mwangi Muriithi (supra). What is constant is that, whatever format the court adopts it must be on record. It is equally settled that by dint of sections 208 and 302 of the Criminal Procedure Code, the law allows cross-examination of a witness who does not give evidence on oath. See Nicholas Mutua Wambua and anotherv Msa Criminal Appeal No.373 of 2006.

It is clear to us from the record that the trial Magistrate deliberately did not conduct voir dire examination for he believed, erroneously, that the complainant was not a child of tender years. The record reads thus;

“PW1 F/c (Female child) not of tender years sworn states in Kiswahili.”The question therefore is, who is a child of tender years? The Sexual Offences Act and the Oaths and Statutory Declarations Act are silent on this question. However way back in 1959 in the celebrated case of Kibageny Arap Kolil v R (1959) EA 82 the Court of Appeal for Eastern Africa held that the phrase “a child of tender years” meant a child under the age of 14 years. The only statutory definition of a “child of tender years” is section 2 of the Children Act where it is defined to mean a child under the age of 10 years. This Court has recently in Patrick Kathurima v R,Criminal Appeal No.137 of 2014 and in Samuel Warui Karimi v R Criminal Appeal No.16 of 2014 stated categorically that the definition in the Children Act is not of general application; that it was only intended for the protection of children from criminal responsibility and not as a test of competency to testify. It follows therefore that the time-honoured 14 years remains the correct threshold for voir dire examination. It follows from a long line of decisions that voir dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this Court recently found that;

“In appropriate case where voir dire is not conducted, but there is sufficient independent evidence to support the charge… the court may still be able to uphold the conviction.”

See Athumani Ali Mwinyi v R Cr. Appeal No.11 of 2015

On the peculiar facts and circumstances of this case, it is our considered view that the trial was not vitiated by the failure to conduct voir dire examination. The complainant’s evidence was cogent; she was cross-examined and medical evidence confirmed penetration.But of utmost significance is the admitted fact that the appellant took the complainant and lived with her as his wife after paying dowry. So that even without the complainant’s evidence the offence of defilement of a child was proved from the totality of both the prosecution and defence evidence, especially the medical evidence which corroborated the fact of defilement.

12. Even if the Court was wrong in its assessment of her ability to understand the nature of the oath, all that happened is that she was allowed to testify unsworn while she could have been sworn but the court had already determined that she understood the duty to tell the truth and her testimony was tested by lengthy cross-examination by counsel for the defence. I do not find that the voire dire examination conducted by the trial court was defective, as it is now accepted that the examination need not take the question answer or any other particular format, only that it must be on Record.

13. Counsel for the DPP submitted that want of corroboration was not fatal in sexual offence case relying on section 124 of the Evidence Act. With respect, the proviso to section 124 of the Evidence which allows the Court to take and act upon the sole evidence of a victim of sexual offence applies where the only evidence in the case is that the victim. Section 124 of the Evidence Act provides as follows:

“124. Corroboration required in criminal cases

Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations 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.

[Act No. 5 of 2003, s. 103, Act No. 3 of 2006, Second Sch.]”

14. There were other witnesses offered by the Prosecution and the Court must look for corroboration in terms of the main part of section 124 of the Evidence Act. If the evidence by these prosecution witnesses is inconsistent the court must resolve the doubts created by the inconsistencies in the favour of the accused. In so doing the court must consider the evidence presented by the Prosecution and the alibi defence of the accused as a whole.

Whether he acts constituting the actus reus of the offences occurred

15. The complainant PW1, a five year old girl according to age assessment report produced by investigating officer PW5, testified how she was called and taken by the accused from a swing at Mama F’s (PW3) home and taken into a kitchen at Mama N’s compound where he sat on a stone and made her sit on him, and then inserted his finger and then his penis in her vagina. She cried then he stopped. He wiped himself with a white paper and threw it in the dustbin; and that he the zipped his trouser and went to his house and Mama F (PW3) came and she told her what happened.

16. PW2 the clinical officer on examining the complainant found her hymen broken, tears on posterior vagina wall and swelling on both labias and a whitish discharge on the vulva region and traces of proteins and he concluded that there had been penetration. Although the complainant had been examined by a medical intern on the day of the incident, PW2 testified that he also carried out his own examination and it was the results of his examination that he used in filing the P3 form. I have no reason to conclude otherwise having seen the original P3 form and PW2 treatment notes dated 9/8/2014 both which are written in the same handwriting and he clearly stated that he had done a second examination on the day following the alleged incident on 9/8/2014 discovering no traces of blood but explaining that ‘he would not expect any wound would be bleeding after 24 hours.’

17. PW2, PW4 and PW5, respectively the clinical officer who examined the complainant, complainant’s mother and the investigating officer testified that the girl had difficulties walking. I would find it proved as a fact that the complainant had her hymen broken, tears on vagina wall, swollen labias and traces of protein and when examined on 9/8/2014 she had difficulties walking. The question that remains is whether it was proved, as a matter of law and fact, that it was an act of defilement or sexual assault as charged, and whether any or both of the said acts were committed by appellant. In other words, was the vaginal penetration of the complainant occasioned by an act of defilement, sexual assault or both and was the act, or acts as the case may be, committed by the appellant?

Was Defilement proved?

18. The offence of ‘Defilement’ is defined in section 8 (1) of the Sexual Offences Act as follows:

“8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.”

The section 2 of the defines ‘penetration’ as

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

Therefore, for defilement to be established, it must be proved that the accused inserted his genital male organ into the genital organ of the complainant or, as charged that the accused inserted his penis into the complainant’s vagina.

19. PW1 gave her evidence-in-chief stating that Shaban had inserted his finger and then his penis into her vagina in that order as follows:

“On 8. 8.14 I was at home swinging at F’s home but they were in the house. I was swinging when Shaban came and called me. He inserted his finger in my vagina [pointing her private part] he then inserted his dudu on my private parts. We were at[particulars withheld] plot. Shaban was sitting on the stone and he made me sit on him. I cried and then he stopped. He wiped himself with a paper and zipped his trouser and went to his house. Mama F came and I told her that Shaban had inserted his penis and finger on my vagina. Mama F took me to Town then I was taken to Kabarnet District Hospital.”

20. Mama F PW3 testified that she had seen accused pick PW1 from the swing at G N’s home and later heard screams and when she went to check found Shaban zipping his trouser, and then he wiped himself with white paper and left. She does not say what between his finger or his penis Shaban was wiping.

21. PW1, however, on cross-examination, at. pp. 8 and 9 of Record of proceedings, she twice stated that she had screamed after Shaban inserted his finger into her vagina as follows:

“I was with F and J at F home.

Shaban picked me alone and took me to the kitchen.

The swing is next to the cattle boma.

He inserted his finger to my private parts.

I screamed and Shaban zipped his trouser.

He had already removed my clothes. Mama F came and found me and [I] narrated what had happened. ”

“Shaban has done the same thing before.

I know Shaban’s home.

When he inserted his finger I cried.

I ran home.

I did not tell J or F”

22. Not once during cross-examination did PW1 mention Shaban inserting his penis into her vagina, but she twice said that he inserted his finger into her vagina and she screamed and ran home. PW2 evidence of penetration could be consistent with insertion of finger only, without insertion of the penis. Curiously, the eye witnesses - the complainant PW1 and PW3 – never said what part of his body that the accused wiped with the paper. The charges were that he inserted his finger and his penis into the girl’s vagina but the girl and the witness did not say whether the accused had wiped his finger, his penis or both. The record on the evidence of the two witnesses merely said “he wiped himself” with a white paper.

23. PW1 did not say whether it was the finger or the penis that she was referring to when she said in reexamination that “he wiped himself with a paper and threw it to the dustbin.” PW3 alleges to have “found Shaban zipping his trouser and had a white paper which he had used to wipe himself”. She does not say that she sawShaban wiping himself or what part of his anatomy he wiped. It may have been only the finger that he wiped, as an open zip does not conclusively denote penetration, the act may have been interrupted when upon insertion of the finger the child screamed and ran home.

24. Although a Court would be entitled under section 180 of the Criminal Procedure Code to convict for attempt even though accused was not charged with attempted defilement, I do not find sufficient evidence with necessary corroboration to a support a finding of attempt. Section 180 of the CPC provides –

“180. Persons charged with any offence may be convicted of attempt

When a person is charged with an offence, he may be convicted of having attempted to commit that offence although he was not charged with the attempt.”

25. That there was no spermatozoa in the PW2’s examination report may also support, although not conclusively, a finding of lack of sexual penetration or penetration in the technical sense of the word within the meaning of section 2 of the Sexual Offences Act.

26. I find that the statement of the complainant in her evidence in chief that he then inserted his dudu [penis] in my private parts was not corroborated by any other evidence, and it would be unlawful to convict on uncorroborated evidence of a child of tender age received in accordance with section 19 of the Oaths and Statutory Act because as prescribed in section 124 of the Evidence Act “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”.

The scene

27. The complainant was categorical that the incident happened in G’s kitchen but PW3 said she had sounds coming from an unoccupied plot. PW3 explained that there was nobody in Mama N’s compound as “they all [leave] to run their errands” and PW4 the complainant’s mother described the scene on cross-examination saying –

“The house is a big kitchen it has a fireplace and a bathroom and also where calves sleep. The room is a big and multipurpose room where 2 calves sleep. There is a bathroom as well as a cooking point which has stones for cooking.”

28. The scene is described by the witnesses with sufficient consistency and I accept the witnesses are referring to the same place, which is G N’s kitchen which she used as a kitchen as described by the PW1, as a bathroom as described by PW3 and multipurpose room as described by PW4.

Discrepancies in the evidence

29. PW3 testified that upon finding Shaban, “he had left towards their home and later I saw him go to his sister’s. PW3 said upon examining the child she noted a crack on her private parts and that her inner clothes were wet and blood stained. She said that the accused had had dropped the white paper he had used to wipe himself in a dust bin and that she had she picked it up and given it to the complainant’s mother. Under cross-examination PW3 said:

“I had screams and went inside the plot. They were both in the bathroom. Shaban was standing and the girl was seated. The clothes were half way down and the shoes were on the floor. I saw the child on her private parts she had a crack and she was wet, the pant was also wet. The blood stain was on the crack. I asked the child and she told me Shaban had inserted his finger and penis on her private part. I told M what transpired. I saw the accused throw the paper into the dustbin as all were following him from behind. Accused did not run he walked slowly. We gave the paper to her mother.”

30. Is it plausible that a person who had just witnessed a man zipping his trousers after defiling a child who confirms that the man had inserted his finger and penis in her private parts would allow such a man to walk away slowly with her and another following and picking the paper he had used to wipe himself with and giving it to the mother. Would not such a person in real life occurrence scream and call for help to arrest the defiler? And would such a defiler slowly walk away and go to his sister’s house or run and go into hiding after his criminal act?

31. In her evidence in chief and on cross-examination, the complainant PW1 asserted that the accused had done the same thing before and that she had reported to her mother. Why was there no mention of this by the mother PW4? Could the evidence be contrived to cover, include or reflect, the previous incident? Could this have been the meaning of the statement by the Complainant girl on cross- examination that “my mother told me to say everything”?

32. PW1 said on cross-examination that when Shaban inserted his finger she screamed and she ran home yet on reexamination by the Prosecution she said “when I screamed Mama F came to my rescue.” In her testimony Mama F PW3 said on cross-examination that –

“I had screams and went inside the plot they were both in the bathroom. Shaban was standing and the girl was seated. Shaban was zipping his trouser and the child was crying.”

33. At what point did the child come back after she had run away following Shaban insertion of his finger? If she ran away how could PW3 have found her seated, crying? If she screamed and ran away when Shaban inserted his finger, there was no opportunity for him to insert his penis and he could not have been wiping his penis with the white paper.

Gaps in the evidence and failure to produce evidence

34. The wet and blood stained clothes were not produced in evidence. The white paper with which the accused wiped himself was not produced. M who PW3 told what had transpired and together with PW3 was following the accused from behind as he walked away from the scene was not called as a witness. I agree with Counsel for the DPP that failure to lead certain evidence is not fatal when there is otherwise sufficient evidence to convict. But failure to lead crucial evidence may lead to an inference that the evidence would be against the Prosecution case. Or such evidence probably never existed.

35. The Complainant’s mother PW4 said that the clothes were washed by her ‘children at 3. 00pm since they normally wash clothes in the afternoon.’ The timing was too conveniently coincidental to the time of the alleged defilement. In addition, none of her said children were called to confirm the very important and culpatory matter of blood stained clothes.

36. The white paper on which the accused wiped himself, assuming he wiped himself on his penis after the abortive attempt to have sexual intercourse with the complainant child may have been conclusive of the accused’s involvement if subjected to DNA testing by the Police to whom the complainant’s mother alleged to have surrendered it. If they had the presence of mind to give white paper to the police why not the wet and blood stained clothes which PW3 said they changed and left at home:

“She had a dress and white trouser which we changed because they were dirty. We also took the wet paper and wrapped it in a polythene bag.”

The mystery of the white paper

37. PW5, the Investigation Officer attached to the Gender and Children Department at Kabarnet Police Station did not testify to receiving any white paper. She said she received the -

”the Complainant [who] came in the company of her mother on allegation of being defiled. She was walking with difficulties. The Mother handed me the treatment notes. I interrogated the child and mother and recorded their statements. I issued a P3 form which was filled at Kabarnet Hospital. I called for other witnesses.”

38. Yet PW3 and PW4, Mama F and the Complainant’s mother, respectively said the paper was given to the police. PW4 said: “I saw the white paper which was given to me by J (PW3) and I handed it over to the police station.” There was also an issue of a ‘clothing’ which Shaban had used to wipe the child according to PW4 who on cross-examination said:

“After interrogating the child she told me that the accused had picked her once and inserted his penis in her vagina andwiped her using a clothing.”

It is not clear whether the witness is talking about the same or previous incident and the “clothing” was not recovered and adduced in evidence.

39. On account of the discrepancies and gaps in evidence pointed out above, the Court does not accept as proved that the accused defiled the complainant by inserting his penis into the vagina of the complainant as charged.

Was the act of inserting a finger into the complainant’s genital organ proved?

40. PW1 said the accused inserted his finger into her vagina pointing to her private part. PW2 the clinical officer confirmed broken hymen, tears on vaginal wall and swollen labias. To this extent the evidence of the complainant as to the accused inserting his finger is corroborated and further support for the accused involvement is provided by the evidence of PW3 who claims to have seen the accused picking the complainant and also finding him with his pants down literally and wiping himself, assuming he was wiping his penis. The accused defends himself by alibi, that he was not at the scene as alleged but at the mosque, then a miraa shop in town and then the mosque before he was called by his sister to go and feed his grandfather. In determining whether the accused was involved in the proved act of sexual assault on the complainant, the court must weighing the prosecution evidence against the alibi defence of the accused.

41. The accused’s defence was based on an alibi that he was away at the mosque at the time of the alleged incident. He also said that he did not go to F’s home and had not visited Mama N’s home. He was also categorical that he did not know the complainant, saying:

“I do not know a child by the name S A who is he complainant in this case. I did not defile her as alleged but I know her mother. I saw her for the first time at the police station. I also do not know PW3 Mama F. I only hear about her. I refuse she did not get me with the child.”

42. All his witnesses were either his friends or relatives except DW5. DW2 and DW3 were accused’s friends who testified that they were with accused at the Mosque from about 12. 30 to 2. 00pm when they went to a miraa shop in town before going back to the mosque at 4. 00pm and finally parting ways at 4. 30pm. DW2 and DW3 however confirmed, respectively, that “Shaban knows all the neighbours” and Shaban knows Mama F. This matter appeared to have happened in a village where the witnesses lived within 100 metres of each other. DW2 drew the image of a close village setting saying when re-examined for the defence:

“It is true they were my neighbours.

Our house was next to Shaban’s [Mama N and A [Shaban’s sister] are neighbours.

Mama F and Shaban’s house is about 100 metres.

Our house was next to A’s

There are many rentals and private homes.

Shaban knows all the neighbours.”

43. The accused DW1 obviously lied as to his knowing the complainant and her mother and Mama F as all his defence witnesses confirmed that he knew them. But this only makes him a liar; it does not prove that he committed the offences charged. It is for the prosecution to prove that the accused is guilty of the offences with which he is charged. The accused does not have to prove his innocence and he may well have chosen to remain silent. However, the fact of lying under oath besides anything else makes the testimony of the particular witness unbelievable, and for an accused it is a lost opportunity to raise a reasonable doubt in the matter under inquiry if the court disbelieves him as against the prosecution evidence.

44. According to PW3 who heard the screams leading her to go and find the accused with the child, the incident happened at about 3. 00pm. when “I was in my house cooking, my Kitchen is outside, Shaban came and picked the child.”The evidence of the defence witness DW3 on reexamination by counsel for the accused confirms the proximity of the houses making it clear that PW3 could see Shaban from her house. He said

“Asha [Accused’s sister DW4] was my close neighbor.

Asha and complainant are close neighbours about 5 metres apart.

When in one house you can clearly see the other.

Mama F, A and Mama N are close neighbors and you can see the others house.”

45. There was an attempt by the accused’s sister DW4 to cast PW3 as a drunk, but no details as the extent of her drunkenness was given to enable the Court gauge whether her alleged state impaired her ability to perceive the events she related in her evidence. She said:

“I left my house [which according to DW2 neighbours Mama N’s where the incident occurred] at about 3. 30pm on that day. I passed by Mama F house and found her but did not take money from her since she was drunk. I came back to my house at about 7. 30pm. I did not hear anything about Shaban and neither did he visit me.”

The testimony of DW4 is significant because she was away from the site of the alleged happening at about they are alleged to have happened and she cannot confirm or deny any of the material facts.

46. DW5 the daughter of the owner of the plot where the incident allegedly occurred painted a picture of the neighbourhood setting which confirms the evidence of the complainant PW1 that they were in gogo Njeri’s kitchen and that of PW3 about unoccupied plot saying:

“Mama N was not at home she was in the market until late when we went home together at about 8. 00pm. Her house is 3bedroomed, but she uses the neighbour’s house. We demolished the house so that there is one bedroom where she lives, another room which is the sitting room is where she cooks and bathes but it is open. It has the door and she normally closes. There was nobody left behind in the plot on that day. Her house is in front and ours at the back. Asha is our neighbor. The complainant is also my neighbor. There are about 12 neighbours and they all leave the plot during the day except mama M.”

47. DW6 testified that she had seen her brother the accused leave with his friends for the mosque, saying “On 8. 8.14 I saw Shaban leave with his friends for the Mosque. I went home at about 2. 00pm. to see my grandfather. At about 4. 00pm I called Shaban [accused] to come and feed our grandfather.” but on cross-examination she conceded that “I do not know where Shaban was between 2. 00pm and 4. 00pm.”

48. However, the act of insertion of the accused finger has been proved by credible evidence of the complainant PW1 consistent with the nature of the injuries testified to by the clinical officer PW2 and corroborated by the evidence of the neighbor PW3 who saw Shaban with the child before the incident of sexual assault.

49. From the setting of the neighbourhood, it was clear that PW3 who was at home as she was seen by DW4 as she left home about 3. 30pm could have see Shaban go into gogo Njeri’s compound and pick or call the complainant. Because of the nearness of the houses, she could have heard the complainant scream and go out to find out what was happening. Although she did not find the accused inserting a finger into the complainant’s private parts, this fact is testified to by the Complainant herself and corroborated by the findings of the clinical officer PW2. The evidence of PW3 places the accused at the scene where the offence of sexual assault took place and the evidence of the complainant identifies him as the person who committed it and the evidence of the clinical officer confirms injuries on the complainant consistent with the assault.

50. The alibi defence of the accused is unbelievable because firstly the accused was caught lying to court about his knowing the complainant, her mother and the neighbor PW3; secondly the defence witnesses DW4, DW5 and DW6 were not at home about the time of the incident and could not confirm or deny it and they could not say where the accused was the material time between 2. 00 – 4. 00pm on the 8th August 2014; and thirdly, the close friendship and family relationship of the defence witnesses to the accused diminishes the weight of their testimony.

51. From the above analysis of the evidence, I have no doubt that the accused inserted his finger into the complainant’s vagina, although I doubt whether he on this occasion inserted his penis and, consequently, while defilement is, as held above, not proved, I find the offence of sexual assault proved beyond reasonable doubt.

Conclusion

52. I would have to agree with the appellant that the matter was casually investigated and prosecuted without regard to the seriousness of defilement charges both with respect to the injury to the complainant and the consequences to the accused. There were many inconsistencies and gaps in the evidence adduced by the prosecution and I do not feel that a conviction for the offence of defilement would be safe.

53. I find the offence charged in Count No. 1 of defilement contrary to section 8 (1) as read with 8 (2) of the Sexual Offences Act, 2006 not proved.

54. I find proved beyond reasonable doubt the offence charged in Court II of sexual assault contrary to section 5 (1) (a) (i) as read with 5 (2) of the Sexual Offences Act, 2006

55. Consequently, the appellant’s appeal is partly allowed with the quashing of the conviction and setting aside of the sentence of imprisonment for life passed on the appellant for the offence of defilement.

56. The penalty for sexual assault under the Sexual Offences Act is a sentence of imprisonment for a minimum ten (10) with possible enhancement to life, as follows:

5. (1) Any person who unlawfully -

(a) penetrates the genital organs of another person with -

(i) any part of the body of another or that person; or

(ii) an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes;

(b) manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person’s body, is guilty of an offence termed sexual assault.

(2) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life.”

The conviction for sexual assault and the sentence of imprisonment for ten years imposed on the accused by the trial court will, therefore, be affirmed under section 354 (3) (a) of the Criminal Procedure Code.

Orders

57. Accordingly, for the reasons out above, the conviction for the offence of defilement contrary to section 8 (1) as read with 8 (2) of the Sexual Offences Act, 2006 and the sentence of imprisonment for life passed on the accused therefor are quashed and set aside.

58. The conviction and sentence for the offence of sexual assault contrary to 5 (1) (a) (i) as read with 5 (2) of the Sexual Offences Act, 2006 are affirmed.

DATED AND DELIVERED THIS 17TH DAY OF JULY 2017.

EDWARD M. MURIITHI

JUDGE

In the presence of

Mr Chepngoswo holding brief for Mr Chebii for Appellant

Ms. Macharia, Ass. Deputy Director of Public Prosecutions.