[2023] KEHC 23464 (KLR)

SOW v Republic (Criminal Appeal E039 of 2022) [2023] KEHC 23464 (KLR) (6 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23464 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal E039 of 2022

PJO Otieno, J

October 6, 2023

Between

SOW

Appellant

and

Republic

Respondent

(Being an appeal from the conviction and sentencing of Hon. J. R. Ndururi ( PM) in Kakamega CM’s S.O. Case No. 70 of 2020)

Judgment

1. The Appellant was arraigned before the Chief Magistrate’s Court at Kakamega, in Sexual Offences Case No. 70 of 2020, charged with a main count of defilement contrary to section 8(1)(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on the 28th day of May 2020 in Navakholo Sub-County within Kakamega County, the Appellant intentionally and unlawfully caused the penetration of his genital organ namely penis to penetrate the genital organ namely vagina of MN a child aged 13 years.

2. In the alternative, the accused was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on the 28th day of May 2020 in Navakholo Sub-County within Kakamega County, the Appellant intentionally and unlawfully committed an indecent act with a child by causing his genital organ namely penis to come into contact with the genital organ namely vagina of MN a child aged 13 years.

3. The Appellant pleaded not guilty to the charge and the case proceeded to full trial with the prosecution calling a total of four (4) witnesses whose evidence can be summarized as below.

4. PW1, the victim testified that she was 15 years’ old, as at the date of testifying, and produced a birth certificate to that effect which was marked as PMFI 1 and which showed that the was born on 26/3/2007. She stated that sometime in 2020 on a date she would not recall (she testified two years after the incident) her mother sent her to buy cooking oil but as she was leaving the home, the Appellant who was her neighbor also sent her to buy cooking oil. When she returned she found the Appellant’s mother and a child and she gave the child the cooking oil. The Appellant asked him to take the oil at his place and when she did the Appellant locked his house which was separate from that of his mother. He asked her to remove her dress and she refused. He then lifted her dress, lay her on the bed and inserted his thing in her private part telling her ‘ananitengeneza’. He defiled her until 8pm and she was in pain and when she cried he told her he would beat her. She then heard her mother calling her name and she hid under the Appellant’s bed. The Appellant then took her to a rocky place and later to the house where he had sex with her again for about 2 hours. When she returned home, her mother demanded to know where she had been and that is when she narrated what had happened leading to the arrest of the Appellant that night. She stated that it was the second time the Appellant had had sex with her the first time being on a Thursday at his house after he waylaid her on the way, locked her in his house and had sex with her even when she had refused and asked her not to tell anyone lest she would be in trouble. She was later taken to Makunga Hospital for examination.

5. On cross examination she stated that she could not recall dates since the incident happened a long time ago when she was 13 years old. She further stated that the Appellant was a son to her uncle and that she was not being used to settle a land dispute.

6. PW2, mother to the victim testified that she knew the Appellant who was a distant relative and their neighbor who settled there after returning home following the death of his father.

7. She stated that on 28/5/2020 at 6PM she sent her daughter, PW1, some cooking oil and that she stayed too long at a time it had started raining. After the rain stopped, she called out her daughter with no response and the Appellant informed her that the cooking oil was with her mother and when she went to the Appellant’s mother she told her it was with her grandchild. She returned home and so did PW1whose dress was torn and muddy and was crying. She narrated to her and her father what had happened prompting them to arrest the Appellant and then she took her daughter to hospital when they learnt she had been infected with HIV AIDS. On cross examination she stated that it was the doctor who informed that the Appellant was HIV positive.

8. PW3, the Investigating Officer stationed at Navakholo Police Station testified that on 26/5/2020 while at the station two officers from Chimoi brought in the Complainant and the Appellant alleging that the Appellant had defiled the Complainant. In the company of his colleagues they took the child to Makunga Health Centre for examination with the child narrating to him what had transpired. He established the child to be a minor from her birth certificate and after receiving the treatment notes and recording statements, he charged the Appellant.

9. On cross examination he stated that he relied on medical evidence and that the first HIV test of the complainant was positive while the second was negative.

10. PW4, a Clinical Officer based at Makunga Rural Health Centre gave evidence that on 29/5/2020 he examined the Complainant’s genitalia and she was in pain and her vestibule was reddish and inflamed. Her labia minora had bruises and was tender and her hymen was penetrated. High vaginal swab revealed blood stains and HIV pus cells were found with bacteria in the urine. He said that he also examined the Appellant and detected puss cells in his urine.

11. On cross examination he stated that the Appellant’s urine revealed venereal infection just like that of the Complainant.

12. The evidence of PW4 marked the close of the prosecution case and the Court ruled that a prima facie case had been established and the Accused person was placed on Defence.

13. The Defence called only the Appellant herein, who in his sworn evidence denied the charges and testified that on the 18th he woke up and was engaged by his neighbor for some casual work where he worked the entire day and left at 6PM and on his way it started raining and he took shelter at a shop about 7PM then returned home where he had dinner at his mother’s house since he had disagreed with his wife and she had left. He was then arrested on allegations that he had defiled the Complainant. The next day he was taken to Makunga Dispensary for examination and when asked to bring a urine sample he took some from the toilet which was not his. He contended that the evidence of the clinical officer was not corroborated and that it was not clear when the victim was defiled with PW3 saying the incident happened on 29th and not 28th or 27th. He further claimed that he was not HIV positive.

14. On cross examination he stated that his family and that of complainant were embroiled in land wrangles though he did not have evidence in support.

15. Judgment was subsequently delivered and the Appellant was convicted and sentenced to serve a twenty years’ imprisonment term to run from the date of his arrest.

16. Aggrieved with the decision of the trial court, the Appellant has lodged this appeal and faults the trial court on the grounds that:-a.That the learned magistrate grossly erred in both law and facts in finding by observing that there was penetration which in real sense was not proved.b.That the learned magistrate grossly erred in both law and facts in basing my conviction and subsequently sentencing me without considering that the evidence was full of contradiction and uncorroborated evidence.c.That the learned magistrate grossly erred in both law and facts by presiding over a trial and sentencing me even in the wake of flimsy and inadequate evidence.d.That the learned magistrate grossly erred in convicting me on a defective charge sheet.e.That the learned magistrate erred in law and facts in rejecting my defense without proper evaluation even after calling my defence witnesses.f.That the learned magistrate grossly erred in both law and fact in convicting me to a harsh sentence for evidence that was full of contradiction.”

17. The appeal was directed that the appeal be canvassed by way of written Submissions which the Court has perused and benefited therefrom.

18. For the Appellant, the submissions largely reiterated the grounds of appeal and stressed the point that the evidence led by the prosecution was deficient, riddled with contradictions hence did not measure to the standard of proof beyond reasonable doubt; that the charge sheet was defective; the defence evidence was ignored and lastly that the sentence was too harsh and excessive.

19. On their part, the Prosecution submitted that the prosecution proved all the elements for the offence of defilement in that the age of the victim was proved through the production of a birth certificate which showed that the Complainant was 13 years at the time of defilement having been born on 26/3/2007. Penetration was narrated by the Complainant and corroborated by PW4, the Clinical Officer, who produced the P3, PRC forms and treatment notes of the victim further stating that the victim’s vestibule was reddish and inflamed, the labia minora had bruises and tender, her hymen was penetrated, vaginal swab revealed blood stains and that there were bacteria in her urine.

20. On the element of identification, the Respondent submits that the Appellant was a relative and a close neighbor of the Complainant hence known to her with no possibility of an error in identification.

21. Lastly, it was submitted that the Appellants defence was duty considered by the trial Court at page 36 of the proceedings it being noted that the Appellant did not call any witnesses in support of his account of his whereabouts on the day.

Issues, Analysis and Determination 22. A perusal of the grounds of appeal in line with the proceedings of the trial court leads the Court to the opinion that the issues that stand out for determination are: -a.Whether the prosecution proved beyond reasonable doubt all the element of the offence of defilement against the appellant?b.Whether the evidence of the prosecution witnesses was contradictory?c.Whether the appellant was convicted on a defective charge sheet?d.Whether the evidence of the appellant was given due consideration?e.Whether the sentence meted on the appellant was harsh and excessive?

23. In every case for defilement the prosecution has the duty to prove that the Complainant was a minor on the date of the incident and that the Complainant was penetrated by the Accused who was positively identified. There was sufficient proof by the birth certificate produced that the Complainant was indeed aged 12 years when the incident took place hence the first ingredient was well established.

24. On penetration the duty of the prosecution extended to establishing that there was either partial or full penetration by insertion of the Appellant’s sexual organ into that of the Complainant. For the prosecution to discharge the onus of proof, it is never the quantity that matters but the quality of the evidence adduced. It is thus the law that the sole evidence of a victim of sexual offence on penetration is sufficient by itself if cogent and satisfies the court that it is the truth.

25. The Complainant narrated how the Appellant who was a distant relative and neighbor locked her in his house, lifted her dress, lay her on the bed and inserted his thing in her private part telling her ‘ananitengeneza’ then defiled her until 8PM. She further stated how the Appellant then took her to a rocky place on suspecting he would be caught and later to the house where he had sex with her again for about 2 hours.

26. The evidence of the victim has been corroborated by PW4, the Clinical Officer who examined the Complainant and established that her vestibule was reddish and inflamed. Her labia minora had bruises and was tender and that her hymen was penetrated. High vaginal swab revealed blood stains and HIV pus cells were found with bacteria in the urine. Upon re-appraisal and re-examination of the totality of the evidence on record, the Court finds that the Prosecution proved the element of penetration beyond reasonable doubt.

Whether The Evidence Of The Prosecution Witnesses Was Contradictory? 27. Even though heavy premium was put on the alleged inconsistencies and contradiction in the prosecution’s case, not much effort was made to demonstrate if such was substantial as to negate the conviction. However, a perusal of the trial court proceedings by the court has shown that the cited contradictory evidence of the prosecution witnesses on the exact date the incident occurred with PW1 saying it occurred on 26th, PW2 the 28th and PW3 the 29th. This is a case where witnesses testified two years after the incident. The Complainant on cross-examination noted that she could not remember the exact date when the incident took place. PW2, mother to the Complainant stated that the incident appeared the night of 28th and PW4, the Clinical Officer stated that he examined the Complainant on the 29th. The charge sheet on the other hand indicates that the incident happened on 28th May, 2020. I find the mix up on the dates to be so slim and the same can be explained on the passage of time. The same is also not so substantial as to be fatal on the case to warrant an acquittal.

Whether The Appellant Was Convicted On A Defective Charge Sheet? 28. The test for determining whether a charge sheet is defective or not was affirmed by the Court of Appeal in Sigilani –vs- Republic (2004) 2 KLR, 480 where it was held:-“The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to specific charge that he can understand. It will also enable the accused to prepare his defence”.

29. The charge sheet disclosed the charges the Appellant faced and the charges were explained in the particulars. In his cross-examining, the Appellant appeared to understand the charges he faced by engaging quick deeply. The Court has anxiously perused the charge sheet and finds no defect hence this ground holds no water and cannot be the basis of disturbing the conviction.

Was The Evidence Of The Appellant Considered? 30. A perusal of the judgment of the trial court shows that the evidence of the Appellant was indeed adequately considered by the trial Court. At page 8 of the proceeding, the trial Court wrote: -“The accused person’s defence is that he was alone in his house during the material evening. He alleged that there is a land dispute pitting his family and that of MN’ family, and that this is the reason why he was set up. The accused person did not expound on the alleged land dispute...”

31. It is thus clear that the evidence of the Appellant was duly considered. It is also noted that the Appellant chose not to call any witnesses including the mother who allegedly served him a meal that evening and the neighbour he said he worked for the whole day on the material day.

Whether The Sentence Meted On The Appellant Was Harsh And Excessive? 32. The circumstances in which a court may interfere with a sentence were addressed in the case of Wanjema v Republic Criminal Appeal No. 204 of 1970 (1971) EA 493, 494 where it was held as follows: -“An appellate Court should not interfere with the discretion which a trial Court has exercised as to sentence unless it is evident that it overlooked some material factor, took into account some immaterial factor, acted on a wrong principle or the sentence is manifestly excessive in the circumstances of the case.”

33. The Complainant was 13 years of age at the time of the incident. The sentence prescribed for defiling a child aged 13 years is coded in Section 8(3) of the Sexual Offences Act No. 3 of 2006 to be imprisonment for a term of not less than twenty years.

34. For the reasons set out above, this appeal lacks merit and the same is dismissed.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, THIS 6TH DAY OF OCTOBER 2023. PATRICK J. O. OTIENOJUDGEIn the presence of:Appellant in personMs. Chala for the RespondentCourt Assistant: Polycap Mukabwa