[2022] KEHC 13908 (KLR)

SOO v Republic (Criminal Appeal E055 of 2022) [2022] KEHC 13908 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13908 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E055 of 2022

RPV Wendoh, J

October 19, 2022

Between

SOO

Accused

and

Republic

Respondent

Judgment

1. SOO, the appellant herein, is dissatisfied with the judgement of the Hon M Obiero, senior principal magistrate Migori which was delivered on May 6, 2022. The appellant was charged with the offence of defilement contrary section 8(1) as read with section 8(3) of the Sexual Offences Act.

2. The particulars of the charge are that on diverse dates between April 30, 2020 and September 7, 2021 at [particulars withheld], Migori County, intentionally caused his penis to penetrate the vagina of LAO, a child aged fourteen (14) years.

3. No finding was made on the alternative charge of committing an indecent act contrary to section 11(1) of the Sexual Offences Act.

4. Upon conviction, on the main charge, the appellant was sentenced to serve twenty (20) years in prison.

5. Being dissatisfied with the judgment, the appellant filed this appeal based on the following grounds:-1. That the court failed to comply with article 50 (2)(g) and (h) of theConstitution;2. That the offence of defilement was not proved to the required standard;3. That the court erred by not considering his defence .

6. The appellant filed submissions on June 29, 2022 in support of the said grounds. In the said submissions he only dwelt on the issue of there being contradictions in the prosecutions case on when the offence was committed, between April 30, 2020 to September 7, 2021 or December 8, 2020; that the other contradictions was when the appellant allegedly had sexual intercourse with the complainant; that though it was alleged that the complainant was pregnant and HIV positive, there is no evidence to support that allegation; that crucial witnesses were not called to testify.

7. Mr Omooria, the prosecution counsel filed his submissions in opposition to the appeal on July 4, 2021. Counsel submitted that there was ample evidence on record that all the three ingredients required to prove the charge of defilement were proved; that the complainant was thirteen (13) years old; penetration was proved and that appellant was properly identified as he had lived with the appellant from April, 2020 to September, 2021 and the complainant knew him as an uncle; that the appellant admitted to knowing the complainant as his niece and that she stayed with his children. The issue of identification does not arise.

8. As regards contradictions in the evidence, counsel urged that they are minor and do not go to the substance of the charge. Counsel urged that the court do dismiss the appeal.

9. This is a first appeal and it behoves this court to exhaustively re-examine all the evidence that was tendered in the trial court, analyze it and arrive at its own conclusions. The court has to make allowance for the fact that it neither saw nor heard the witnesses testify. This court is guided by the decision of Okeno v Republic [1972] EA 32.

10. PW1 G O recalled that on September 9, 2021, his niece by name LA aged fourteen (14) years informed him that the person who had taken her, to care for his children had turned her into a wife; that the said LA explained that the person, that is SK would wait for the wife to go to sleep then he would go to have sex with her and that he had threatened to kill her if he disclosed; that the said S had started having sex with her a week after she arrived at his home and that by the time she informed PW1, she had lived with S for about one year.

11. On receiving the information PW1 reported to xxxx police station on September 10, 2021 and took the child to hospital. Accordingly, to PW1, the appellant took the complainant from his home on December 8, 2020 after her father died. PW1 told the court that the child was found to be pregnant and HIV positive upon examination.

12. PW2 JA, LA’s grandmother recalled September 10, 2021 when LA came home and informed her that her uncle, KO whom she was living with had turned her into a wife and had been having sex with her. PW2 testified that K is her son. PW2 told the court that she was not able to pay LA’s fees and SK took the complainant to educate her. PW2 reported the matter to police station with PW1.

13. PW3 LAO, told the court that she is 13 years old and that she started living with her uncle on April 25, 2020. She recalled that when other people were asleep, the uncle would go where she sleeps with his children who are young. He could go remove her pant and would have sex with her. She was defiled severally till she reported to her grandmother on September 9, 2021 after which the matter was reported to the police station and she was also examined. She explained in detail that the first incident, the appellant held her mouth and neck and threatened her and told her not to tell anybody.

14. PW4 Muindi Justus, a clinical officer at Migori Referral Hospital examined PW3 on September 10, 2021 on allegation of defilement. He did not find any bruises, hymen was broken but not fresh. PW4 produced two reports prepared by Dr Okari and Dr Otieno, dental surgeons who estimated the age of the complainant to be between 12 and 13 years old.

15. PW5 PC JA recalled receiving a report from one MA that her daughter had been defiled and PW 5 organized for the complainant to be examined by the doctor. PW5 did not call the said Milka as a witness. PW5 denied having established any grudge.

16. When called upon to defend himself, the appellant opted to make a sworn statement in which he denied the charges. He admitted that the complainant is his niece. The appellant stated that on April 6, 2021 about 6:00 pm She saw the complainant and a boy called Peter; that the complainant informed him that Peter defiled her and he promised to take her to police station next day. He travelled and next day, he informed the complainant’s teacher at school. The two children were called and they admitted and later asked him for forgiveness and Peter asked him not to report to his father. He was summoned to school on October 8, 2021 and was informed that the children had changed their minds. He was later arrested and the investigating officer refused to listen to him. He denied defiling the complainant as he has a wife and complainant is his niece and she used to sleep with his children.

17. DW2 RA, the appellant’s wife identified the complainant as the brother in law’s daughter. DW2 stated that the girl had stayed with them for three years and she had never reported to her about anything; that on September 7, 2021 when she had gone to the river, she did not find the girl but the complainant came back later; that next day when she went to school, the complainant did not come back for two days. She came with another child but left again. When she went to the other childs’ home, she was with other children. On October 1, 2021, people threatened to burn their house and on October 2, 2021 people went to their home while armed and wanted to kill her husband but he escaped.

18. I have now reviewed all the evidence on record, the grounds of appeal and the submission of both parties.

19. Whether article 50(2)(g)of theConstitution was complied with, I have perused the proceedings before the trial court and I am satisfied that the said article which guarantees an accused’s right to fair trial was complied with. Article 50(2)(g) and (h) provides as follows:-50(2) Every accused person has the right to a fair trial, which includes the right-(g) To choose, and be represented by an advocate, and to be informed of this right promptly.(h)To have an advocate assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of his right promptly.

20. It is required that the court informs an accused of his right to counsel and that he should be informed promptly so that he can have adequate time to prepare his case. In this case, the court informed the appellant of his right to counsel when he was arraigned before the court, even before plea was taken.

21. I have noted that article 50(2)(h) was not explained to the appellant. However, my view is that the said right is not absolute because an accused will only be assigned an advocate at the State expense if it is demonstrated that substantial injustice will result.

22. Having been informed of his right, under article 50 (2) (g) the appellant was ready to take plea. There was no evidence to show that substantial injustice would result. The appellant was informed of his right and the said article was not breached in anyway.

Proof of defilement: 23. To prove an offence of defilement under section 8 (1) of the Sexual Offences Act, the prosecution must establish that:- 1. That the complainant was a minor;

2. That there was penetration;

3. Establish identity of the perpetrator.

Age: 24. There is overwhelming evidence that the complainant was a minor. PW3 testified that she was thirteen (13) years old. PW4 produced two repots prepared by dental surgeons who examined the complainant and estimated her age to be between 12 to 13 years. In Mwalango Chichoro v Republic MSA Criminal Appeal No 24 of 2015, the court held that age can be proved through various ways e.g birth certificate or medical evidence. The court stated as follows:-'The question of proof of age has fondly been settled by a recent decision of this court to the effect that it can be proved by documentary evidence such as birth certificate, baptism card or by any evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardians or medical evidence among other credible forms of proof.'

25. I am satisfied that complainant’s age was proved to be thirteen (13) years.

Penetration: 26. Penetration is defined in section 2 of the Sexual Offences Act as'The partial or complete insertion of the genital organ of a person into the genital organ of another person.'

27. PW3 narrated in detail how the appellant on several occasions inserted his penis into her vagina. That had been repeated for along time. She had lived in the appellants house for about a year. On examination by PW4, he found that her hymen was broken and tear was not fresh. The trial court believed the testimony of PW3. PW3 informed her grandmother PW2 and PW1 about the incident when they took it up with the police. There is no reason adduced by the appellant as to why the complainant his niece, a child he was looking after, feeding and educating, could frame him without good reason. I am satisfied that the complainant was truthful.

28. Of the appellants identity, the appellant admitted that he lived with the complainant. The appellant tried to shift blame in his defence to a boy called Peter who had allegedly admitted to defiling the complainant. However, he raised that defence as an afterthought. He had not made such allegation to PW1, PW2, PW3 or even the investigating officer PW5. I find the appellant had an opportunity to defile the complainant when all others were asleep. Though DW2 tried to defend the appellant, she could not tell what the appellant did when she was asleep. I am satisfied that the appellant was properly defiled as the perpetrator and he threatened the complainant with dire consequences and that is why she kept quiet for so long.

29. The complainant alleged that there were many contradictions in the prosecution case as regards the date when the incident occurred. The change indicates that the incident occurred between April 30, 2020 and September 7, 2021. PW1 and PW2 recalled that by September 9, 2021, the complainant had lived with the appellant for about one year. In cross examination, the appellant then said that he took her on December 8, 2020. If he took her on December 8, 2020, then he could not have lived with her for one year. Besides, there is no specific date that was given to the court as to when PW3 was defiled. The incidents happened on dates that PW 3 could not recall. A contradiction in the evidence can only be taken into account if it goes to the root of the charge, but not if it is were discrepancies. In the case of Joseph Mina Mwangi v Republic Criminal Appeal 73 of 1993 the court said:-'If any trial, there are bound to be discrepancies. An appellate court in considering these discrepancies ought to be guided by the overriding principles of section 382 of the Criminal Procedure Code that is, whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are in consequential to the conviction and sentence .'

30. In Twahengane Alfred v Uganda Criminal Appeal 139 of 2001 [2003] UGCA, 6, the court held:-'With regard to contradictions in the prosecution case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution case.'

31. The role of the trial court is to reconcile any contradictions in the evidence. The trial court did not take note of these contradictions but in my view, they are mere discrepancies that do not go to the substance of the charge.

32. The appellant also alleged that key witnesses were not called and specifically one Milka. It is PW5 who told the court that it is one Milka who took the complainant to the police station and reported that she was defiled. PW1, when asked if he knew Milka, admitted but was never asked if she is the one who made the report to PW5. PW2 denied knowing about the report made by Milka but PW3 denied knowing who Milka was. PW3 corroborated PW1 and PW2’s evidence that they are the once took him to police station. It is not clear whether Milka was one of them. Even then, failure to call Milka as a witness would not be adverse to the prosecution case because there is no evidence that she witnessed any of the act committed on PW3. PW3 was alone and any of the other witnesses PW1 and PW2 acted on what PW3 told them. Milka would be repeating the testimonies of PW1 and PW2 on how the appellant came to be arrested.

33. It has clearly emerged from the evidence that PW3 is a niece to the appellant. PW1 identified the appellant as his brother and uncle to PW3 while PW2 is the appellant’s mother and grandmother to PW3. The appellant admitted the fact that the complainant was his niece and so did DW2, his wife.

34. Clearly, these are people who were closely related by blood and in my view this is a case of incest that falls under section 20(1) of the Sexual Offences Act. Even though the appellant was charged with the offence of defilement, the evidence disclosed an offence of incest and the trial court should have directed that accused be charged accordingly. Section 20(1) of the Sexual Offences Act provides as follows:- 20. (1)Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years: Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.

35. To prove an offence of incest under section (2) of the Sexual Offences Act, the prosecution has to prove the following:-1. Knowledge that the person is a relative;2. Penetration or indecent act.

36. In the instant case, the complainant is a niece to the appellant. Secondly, there is evidence that there was penetration of PW3. Even if penetration had not been proved, proof of an indecent act is sufficient to prove the offence.

37. Under the section 20 of the Sexual Offences Act, the sentence upon conviction, depends on the age of the complainant so that if the victim is below the age of eighteen years, the accused is liable to imprisonment for life.

38. The trial court had convicted the appellant for defilement and since the offence of incest and defilement carry basically the same sentence, it is my view that the appellant will not suffer any prejudice if this court convicts him for the offence of incest.

39. For the above reason, I set aside the conviction and sentence on the offence of defilement. I substitute it with conviction for the offence of incest contrary to section 20(1) of the Sexual Offences Act.

40. The appellant took advantage of his own vulnerable niece, a child entrusted to him to care for and abused her innocence. A deterrent sentence is preferred. I will sentence him to fifteen (15) years imprisonment. The sentence will commence on May 6, 2021.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 19TH DAY OF OCTOBER, 2022R. WENDOHJUDGEJudgment delivered in the presence ofMr. Mulama for the Respondent.Appellant present.Nyauke Court Assistant.