[2022] KEHC 14112 (KLR)

Suleiman v Republic (Criminal Appeal 33 of 2019) [2022] KEHC 14112 (KLR) (Crim) (18 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14112 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal 33 of 2019

LN Mutende, J

October 18, 2022

Between

Arapat Suleiman

Appellant

and

Republic

Respondent

(Appeal against the original conviction and sentence in Sexual Offence Case No71 of 2015 at the Chief Magistrates’ Court Kibera by Hon. F. Mutuku - SRM on 21st December 2018)

Judgment

1. Arapat Suleiman, the appellant, was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. Particulars of the offence being that on the 1st day of February, 2015, at [Partcularas Withheld] –Muslim area within Nairobi County, unlawfully and intentionally caused his male organ namely (penis) to penetrate into private parts namely (anus) of BD a child aged six years against the order of nature.

2. The case as presented by the prosecution was that on the 1st day of February, 2015, BD the complainant, was playing by the gate to their house when a stranger appeared, offered to buy him chips and carried him on his back. He took him to a bush, where he undressed, molested and left him in the bush. When he regained his senses, he dressed up amidst pain in his anal area and went to the roadside. Prior to molesting him the assailant placed him down and hit him with a stone on the back, the area was painful. People he encountered by the roadside asked him to show them his home which he did.

3. PW3 Selom Ochieng Ouma, the chairman of Mji Kumi who was among the people who found the complainant alongside the road near the bush sought to know where he lived and he led them to his home.

4. PW2 MA, the complainant’s mother, who had been looking for him noted the complainant had a swollen face. She examined him and found his anus bleeding. They took him to Nairobi Women Hospital where he was admitted for two (2) weeks. In the meantime the matter was reported to the Muthangari Police Station byPW4 Musa Ibrahim, the complainant’s uncle. According to PW4, although the suspect was a stranger, he was identified by the complainant as a person he referred to as George. The person was known to PW4 before.

5. The appellant was taken to Muthangari Police Station on November 21, 2015, where he was re-arrested by PW7 No. 44371 P.C Kipkemboi Yegon. He investigated the case and caused the appellant to be charged. He issued the complainant with a P3 Form that was filled and adduced in evidence.

6. Upon being placed on his defence, the appellant testified that in 2014, December, he was involved in a robbery at an Mpesa shop at Dandora and he returned to Kawangware where he found people looking for him. He escaped to Mombasa where he stayed until November, 2015 and only returned to [Particulars Withheld], Muslim, following the death of his father. Upon arrival he was arrested the following day and taken to the Chief’s Camp where ten (10) women went with children and alleged that he had defiled the children. The children denied knowing him, but, he was taken to the Police Station, Muthangari.

7. He claimed to have stolen Kshs. 150,000/- from the Mpesa shop at Dandora where the complainant’s mother worked. That while in company of his friends, popularly known as “Mamoria” they stole from many people and snatched their phones.

8. The trial court analyzed evidence presented, found that the age of the child was proved and so did the act of penetration, ingredients required to prove the offence of defilement. On the question of identification of the perpetrator of the act, the court found that the complainant positively identified the appellant as the culprit. It dismissed the alibi defence put up at the defence stage as an afterthought. Similarly, the court disregarded the allegation that the complaint’s mother framed him as she worked at the Mpesa shop as having been an afterthought. Hence the conviction. In the result, the appellant was sentenced to life imprisonment.

9. Aggrieved, the appellant appeals on grounds that:1. That, the trial Magistrate erred in law and fact by convicting the appellant in reliance on the evidence of penetration without considering whether the same was adequately proved by the complainant (PW1), PW5, and PW6, Clinical Officers.

2. That, the trial Magistrate erred in law and fact by convicting the appellant based on the evidence of PW2, PW3 and PW4 without considering that the adduced evidence was riddled with contradictions and inconsistencies more on the period the victim stayed in hospital.

3. That, the trial court lost direction in evidence and rejected the appellant’s defence and failed to put into consideration that, the same was not displaced by the prosecution as per Section 212 of the Criminal Procedure Code Cap. 75 laws of Kenya, thus Section 169(2) of the same Code was not met.

10. The appeal was canvassed through written submissions. It was urged by the appellant that the age of the complainant was not in dispute. But, the term alluded to of “tabia mbaya” did not prove the act of penetration. That the complainant having stated that he did not know what the assailant put in his anus was not proof sufficient of penetration.

11. With regard to the medical evidence adduced, the appellant complains that Sections 33 and 77 of the Evidence were not complied with prior to production of Post Care Rape Form filled by an Officer who had resigned. He questioned how the P3 Form was issued in the months of March, 2015 when the examination was carried out in February, 2015. In the result that there was no penetration.

12. On the question of identification the appellant argued that the trial court did not interrogate whether the suspect was recognized at the outset such that the complainant gave any description that would enable him to recognize the assailant. He faulted the manner in which the complainant was made to pick him from the remandees that were assembled at Muthangari Police Station. He argued that a properly organized identification parade should have been conducted instead of the complainant being called to see the suspect and the OCS himself picking him by touching him and that the appellant had no burden of proving the alibi put forward.

13. The Respondent through learned Prosecution Counsel, Ms. Millicent Odour submitted that medical evidence tendered proved anal penetration which corroborated evidence of the complainant as to the act done on him.

14. On the question of penetration, it was urged that evidence on record indicated that the appellant was not well known to the complainant but he was able to describe him and finally identify him. That the offence having been committed in broad daylight the complainant was able to see the assailant very well.

15. This being a first appellate court, it is mandated to re-assess and reanalyze what transpired during trial, appreciating that it had no advantage of seeing or hearing evidence tendered by the witnesses and to come up with independent conclusions. In the case of Kiilu &Anothervs.Republic (2005) KLR174 the court stated that:“i.An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.ii.It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”

16. The major determinant of defilement is well captured in Section (8) (1) of the Sexual offences Act that stipulate thus:A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

17. The court would therefore be required to ascertain whether ingredients of the offence existed, which are:(a)The age of victim.(b)The act of penetration.(c)Positive identification of the perpetrator.

18. The age of the complainant/victim is stated in the particulars of the offence as six (6) years. PW2 the victim’s mother adduced in evidence an immunization /clinic card for the victim which proved that he was born on May 5, 2008. This means that at the time of the incident he was seven (7) years, a fact not in dispute.

19. On the question of penetration, the act is defined by Section 2 of the Sexual Offences Act as:Partial or complete insertion of the genital organs of a person into the genital organs of another person;

20. The victim testified to have been taken to the bush where the assailant did to him “tabia Mbaya”. Translated into English, it would mean “bad manners”. This is the term questioned by the appellant. ‘Bad manners’ an euphemism of sexual intercourse or generally harming someone sexually or even touching another in an improper way. In the instant case the complainant explained what he meant by ‘tabia mbaya’. He stated that the assailant placed him down, hit him with a stone on the back having undressed him by removing his trouser and sweater and inserted something in his anus and he was in pain. The person had also removed his trousers. The complainant was seen and admitted at Nairobi Women Hospital the following day, February 2, 2015. He had a right swollen eyelid and bruises on the back, then a tear on his anus. Subsequently he was examined by PW5 Dr. Maundu of Nairobi Police Surgery on the February 21, 2015, who confirmed that he had a healing wound on the anus. And the victim underwent surgery to repair the tear in the anus.

21. The appellant complains that production of medical evidence was not compliant with Sections 33 and 77 of the Evidence Act. Section 33 of the Act provides that:Statements, written or oral or electronically recorded, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured, without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases—

22. An explanation was rendered by PW6 Kinuthia Edward Mbugua who stated that Dr. Ongeri who filled the Post Care Rape (PCR) Form resigned from the facility such that he could not be found. He told the court that he had worked with both Dr. Ongeri and also Dr. Kamau who had authored the Discharge Summary and was conversant with their hand writing. Although the appellant was not granted the opportunity of either agreeing or objecting to the production of the documents, he was not prejudiced because on being granted the opportunity to cross examine the witness he proceeded without raising the issue. Typographical errors noted on the documents were properly explained by the witness.

23. Section 77 of the Evidence Act on the other hand provides that:1. In criminal proceedings any document purporting to be a report under the hand of a Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence

2. The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it. (3) When any report is so used the court may, if it thinks fit, summon the analyst, ballistics expert, document examiner, medical practitioner, or geologist, as the case may be, and examine him as to the subject matter thereof.

24. Pursuant to that provision of the law, a person who did not prepare the report may produce it provided that the presumption of the authenticity is met. If need arises then the maker may be called to be subjected to cross examination. There was no such a request in the instant case.

25. It is also trite that the act of penetration can be proved by evidence of the complainant perse. In the case of Kassim Alivs. Republic Criminal Appeal No. 84 of 2005(MSA), the Court of Appeal stated that:“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence.”

26. In the case of Bassitavs. Uganda, SC Criminal Appeal No. 35 of 1991 it was held that:“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victims own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”

27. Further, considering the law as provided by Section 124 of the Evidence Act, it was a question of the court observing the demeanor of the complainant and reaching a conclusion whether or not he was truthful.

28. Looking at evidence adduced, there is proof beyond reasonable doubt that the act of penetration was committed upon the person of the complainant.

29. On the question of identification, the complainant stated the he knew the person when he called him. He was stranger to him as he did not know him before. It happened at 7. 00 pm. This was a case of visual identification. In the case of Wamungavs. Republic (1989) KLR 426, the Court of Appeal stated that:“It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.”

30. The complainant stated that the culprit, a stranger, called him and said he would buy him chips. Instantaneously, he carried him on his back, took him to the bush, assaulted and defiled him. He did not find him afterwards. It is not clear as to what happened to the minor but according to PW3, he found the complainant alongside the road the following day, the February 2, 2015 at 5. 30am. PW2 also confirms that when her son went missing, he was taken home by PW3, a person she knew, at about 6. 00am.

31. AlthoughPW1 did not adduce evidence in regard to having been defiled at a house prior to being taken to the bush and assaulted, PW3 testified that the complainant, PW1, told him that he was molested by a person he could identify. That he led them to a house where he was defiled but the house was locked. The landlady purportedly told them that the owner of the house worked at the market.

32. Looking at the trial court’s record, Salim Ochieng Ouma adduced evidence on two (2) separate days, the October 18, 2016 and February 16, 2017 respectively, although the record is not clear as to what transpired. It is not indicted why he was re-called or whether any application was made. But, it is important to reproduce part of his evidence adduced on the February 16, 2017. He stated thus:“On 2/2/2015 I was in the house around 6. 30 am I was called by Mary wa Mawaima and told me there is a child they found on the rod and was not in a good state, we met I asked the boy his name he told me he is BE his right eye was swollen he told me on 1/2/2015 he was with his fried at their gate at around 7. 00 pm a man called him and told him he would buy him chips. He followed him and was taken to a house in Muslim made of iron sheet. He told us they went there with the man at night he was taken to a bush he didn’t know the name of the person. The man who took him to the bush defiled him from his Anus and hit his right eye he lost consciousness and fell, when he regained consciousness he walked to the road. He was naked, we asked him if he knew his home he said he knows, we took him to his house around 150 meters from the bush. We didn’t see his clothes. We found his mother had gone to work a neighbour gave us their keys and he wore clothes. We checked his behind as he was waking with difficulties we reported to the area Chief Muslim, we called the mother who came. I knew her she is M I didn’t know the child, we took the child to hospital. He was admitted. We looked for the owner of the house we found him after 2 days. He used to cook chapatti and tea at Kawagware market we asked him to take us to his home. He took us and told us on 1/2/206 he didn’t sleep in his. We took him to Muthangari and the child was shown him he said he is not the one who defiled him. We did further interrogation and a lady was able to identify the Accused he was called George after her child told her. She went arrest Arapat and Arapat escaped. The Accused was arrested after 1 year. The complainant and another child went and identified him in the parade. Suleiman was not staying in that house the owner was his friend. The child said they didn’t do anything in the house. They went out at night. I didn’t know Suleiman.”

33. PW7, the Investigation Officer, was not at the Police Station when the appellant was taken there. He alleged that he linked the appellant to the offence based on witness statements and hospital documents. His scanty evidence prompted the trial court to ask him questions and he stated that he was not aware of the house the complainant was taken to. That IM (PW4) identified the appellant based on the description by the complainant. PW4 a maternal uncle to the complainant, stated that the complainant stated that he could identify the suspect but he had not seen him before. And after the appellant’s arrest, the complainant went to identify him, a person they used to call George, but he was now known as Arapat.

34. It has been alleged by witnesses that the appellant with others were placed on a parade for purposes of being identified. PW3 alluded to having been called to Muthangari Police Station where the Officer Commanding the Station (OCS) assembled remandees outside the police Station. When the complainant was called to identify the suspect he denied having seen any of them. His answer prompted the OCS to touch each and every remandee and when the appellant was touched the complainant/minor was able to identify him. He was the first individual to be touched.

35. Identification parades are ordinarily conducted to enable a witness to identify a culprit. There are some principles followed to ensure that it is done in a fair manner. The appellant complains that the purported parade was flawed and it did not pass for a parade. That the minor did not give any description to the Police and the laid down procedure was not followed.

36. An identification parade can only be of value if it is conducted in a manner that is contained in the Police Force Standing Orders. A group of people, the suspect inclusive, who should be at least eight (8) in number should be lined up for purposes of being identified by a complainant who previously described the individual to the police, possibly in details. In the case of Njihia vs. R. (1986) ILLR 422 the Court of Appeal stated that:“It is not difficult to arrange well-conducted parades. The orders are clear. If properly conducted, especially with an independent person present looking after the interests of a suspect, the resulting evidence is of great value. But if the parade is badly conducted and the complainant identifies a suspect the complainant will hardly be able to give reliable evidence of identification in court. Whether that is possible, depends upon clear evidence of identification apart from the parade. But of course if a suspect is only identified at an improperly conducted parade, it will be concluded by the witness that the man in the dock, is the person accused of the crime; and it will be difficult, if not impossible, for the witness to dissociate himself from his identification of the man on the parade, and reach back to his impression of the person who perpetrated the alleged crime.”Indeed, Police Form 156 which is designed pursuant to Force Standing Orders issued by the Commissioner of Police under section 5 of the Police Act Cap 5 Laws of Kenya and which is invariably used in the conduct of identification parades expressly provides for 16 or so requirements which ought to be observed. As far as is relevant to this case, Standing Order 6(iv) (d) and (n) state as follows:“6. (iv)Whenever it is necessary that a witness be asked to identify an accused/suspected person, the following procedure must be followed in detail:…………………(d)The accused/suspected person will be placed among at least eight persons, as far as possible of similar age, height, general appearance and class of life as himself. Should the accused/suspected person be suffering from a disfigurement, steps should be taken to ensure that it is not especially apparent;………………….(n)The parade must be conducted with scrupulous fairness, otherwise the value of the identification as evidence will be lessened or nullified;”

37. The officer who is alleged to have prepared the parade was not called as a witness to ascertain if indeed an identification parade was conducted, leave alone being compliant with the Police Standing Orders. There having been nothing to suggest that the manner in which the appellant was identified was fair, there was a lacuna that remained unresolved. The manner in which the complainant identified the appellant as the perpetrator of the act having remained unresolved, the trial court directed issuance of summons to the caretaker of the house that was alleged to have belonged to the culprit. Joseph Kimani who was summoned appeared in court and denied being the caretaker. It was his word of mouth that he used to burn garbage at the place; the landlord had passed on and he did not know the tenant who resided in the house.

38. This having been a criminal case, the prosecution was required to prove the case beyond reasonable doubt. In the case of Woolmingtonvs. DPP (1935) UKITH 1, Lord Sankey stated that:“Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to... the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner... the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."

39. There were notable contradictions in this case that remained unexplained. There was an alleged crucial individual alleged to have been a lady who identified the appellant at the outset after allegedly being told by her child and that he escaped. This information did not seem to have been within the knowledge of the Investigation Officer. In his defence the appellant came up with a defence of having been part of the gang that was carrying out criminal activities within Dandora and having escaped to Mombasa where he stayed for a whole year hence his absence from Kawangware. This was a bizarre defence, but it did not shift from the prosecution the duty of proving the case to the required standard. The child/victim having denied knowing people that he saw lined up by the OCS at the outset meant that he did not know the appellant. This means that the dock identification that followed was worthless.

40. From the foregoing, it is apparent that had the trial court analyzed evidence adduced properly it would have returned a verdict of ‘Not Guilty’. In the premises I am satisfied that the appeal herein is meritorious. Therefore, the conviction is hereby quashed, and the sentence that resulted is set aside. The appellant shall be released forthwith unless otherwise lawfully held.

41. It is so ordered

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI, THIS 18THDAY OF OCTOBER, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:AppellantMs. Odour for the StateCourt Assistant - Mutai