[2022] KEHC 11566 (KLR)

SWW v Republic (Criminal Appeal 31 of 2018) [2022] KEHC 11566 (KLR) (17 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11566 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal 31 of 2018

LK Kimaru, J

May 17, 2022

Between

SWW

Appellant

and

Republic

Respondent

(Being appeal arising from original sentence and conviction in Kitale Chief Magistrate’s Court S.O. Case No. 45 of 2016 delivered by Hon. P.K. Mutai - SRM)

Judgment

1. The Appellant SWW was charged with defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the offence were that on 1st March 2016 at [Particulars withheld] village in Trans Nzoia County, the Appellant intentionally caused his penis to penetrate the vagina of MW a girl aged 10 years. He was alternatively charged with committing an indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the offence were that on the same day and in the same place, the Appellant intentionally caused contact between his penis and the vagina of MW a girl aged 10 years. When the Appellant was arraigned before the trial magistrate’s court, he pleaded not guilty to the charge. After full trial, he was convicted of the main charge of defilement. He was sentenced to serve 30 years imprisonment. Aggrieved by his conviction and sentence, the Appellant filed an appeal to this court.

2. In his petition of appeal, the Appellant raised several grounds of appeal challenging his conviction and sentence. He faulted the trial magistrate for convicting him on the basis of prosecution evidence that was full of contradictions. He lamented that the evidence adduced by the prosecution was insufficient to establish the charge that was brought against him to the required standard of proof beyond reasonable doubt. He observed that there were no eye witnesses to the alleged defilement to enable the trial court convict him. In the premises therefore, the Appellant urged the court to allow his appeal, quash his conviction and set aside the sentence that was imposed on him.

3. During the hearing of the appeal, both the Appellant and the learned prosecutor presented to court written submissions in support of their respective opposing position. In summary, the Appellant stated that it was wrong for the trial magistrate to believe the testimony of the complainant yet there were gaps in her evidence. In particular, he noted that whereas the complainant had testified that she stayed with him, as a father, with other children, no effort was made by the prosecution to secure the testimony of the other children who were in the house at the time it is alleged the offence was committed. The Appellant attributed the charge brought against him to the difference he had with the mother of the complainant whom he had divorced. He urged the court to evaluate the role played by the teachers of the complainant in the lodging of the complaint against him. He was of the view that they had influenced the complainant to lodge a false complaint against him.

4. The Appellant took issue with the manner in which the investigations were conducted. He explained that all aspects of the case was not properly investigated and the resultant charge was based on insufficient evidence. The appellant pointed out that he was charged with a defective charge. He pointed out that he should have been charged with committing incest instead of the charge that he was convicted of. He took issue with the medical evidence that was adduced. In his view it did not corroborate the complainant’s testimony that he had sexually assaulted her. The medical evidence was inconclusive to establish his guilt. He lamented that his defence was not considered before the trial court delivered the impugned decision convicting him of the charge. He submitted that if the trial court had considered the totality of the evidence adduced, it would have reached a different verdict acquitting him of the charge. He urged the court to allow the appeal.

5. On his part Mr Omooria, learned Assistant Director of Prosecution submitted that the prosecution had established the charge of defilement brought against the appellant to the required standard of proof. The ingredients of age of the complainant, penetration and the identity of the perpetrator were established to the required standard of proof. He was not persuaded by the assertion by the Appellant that the evidence adduced against him was insufficient, or was contradictory, or was inconsistence to the extent that it could not sustain a conviction. On the contrary, he submitted that the evidence adduced against the Appellant was cogent and credible. He urged the court to uphold the trial magistrate’s verdict and dismiss the appeal.

6. This being a first appeal, it’s the duty of this court to reconsider and to re-evaluate the evidence adduced before the trial magistrate’s court so as to reach its own independent determination whether or not to uphold the conviction. In doing so, this court is required to be conscious of the fact that it neither saw nor heard the witnesses as they testified. (See Okeno Vs. Republic [1972] EA 32. ) In the present appeal, the issue for determination by this court is whether the prosecution established the Appellant’s guilt on the charge of defilement to the required standard of proof beyond any reasonable doubt.

7. For the prosecution to establish the charge of defilement, it must prove three essential elements: the age of the victim, whether there was penetration and finally the identity of the perpetrator. In the present appeal, other than the testimony of the complainant to the effect that she was 10 years old, PW4 Pharise Silali, working at Kitale County referral hospital produced an age assessment report prepared by Dr. Mary Oyieke. PW4 was familiar with the said Doctor’s handwriting and signature. According to the report, the complainant was 10 years old at the time of examination. The assessment report was produced as Prosecution’s Exhibit No. 3. Dr. Oyieke did an age assessment by examining the complainant’s dental structure. This court is satisfied that the prosecution established that the complainant was 10 years at the time of the sexual assault. The oral and medical evidence sufficiently established the complainant’s age.

8. As regards penetration, Section 2 of the Sexual Offences Act defines penetration as “The partial or complete insertion of the genital organs of a person into the genital organs of another person.” In the present appeal, the complainant testified that on two occasions the Appellant, who is her father, had sexual intercourse with her. From her testimony, it was evident that the Appellant and the complainant slept in the same room. While the father slept on a bed, the complainant slept on a matress on the floor. On the two occasions that she was sexually assaulted, the complainant testified that the Appellant removed her clothes before defiling her. In both instances, she screamed but was warned by the Appellant not to do so at the risk of being killed.

9. When the complainant went to school the following day, the teachers noticed that she was not walking properly. They suspected that she may have been sexually assaulted. A teacher called J informed PW2 ANN, the Deputy Head teacher of [Particulars withheld] primary school where a complainant was a pupil. Upon inquiry, the complainant was able to open up and told the teachers that she had been defiled by her father. A report was made to the police based at Birunda AP post. PW3 APC Charles Kiptoo went to the school, and upon receiving the information, went to the Appellant’s home where he arrested him and took him to Kiminini police station. The complainant was taken to Kitale County Referral Hospital where she was examined by PW6 Linus Nakitare a clinical officer. According to his report, he established that the complainant’s hymen was missing. There was evidence that the Complainant has been sexually assaulted. He put the complainant on a course of treatment. The treatment notes and the P3 form were produced as Prosecution’s Exhibit No. 1 and 2 respectively. When he was placed on his defence, the Appellant denied committing the offence. He attributed the lodging of the complaint to the settlement of scores by the mother of the complainant whom he had been separated from.

10. On re-evaluation of this evidence, it was clear that the prosecution did indeed prove to the required standard of proof beyond any reasonable doubt that the Appellant penetrated the complainant. The testimony of the complainant coupled with medical evidence established that indeed the complainant had been sexually assaulted. The Appellant’s defence denying committing the offence is countered by the strong culpatory evidence that was adduced against him by the prosecution witnesses.

11. As regard the identity of the perpetrator, the complainant testified that the Appellant was her father. They slept under the same roof. The Appellant did not deny that he was the father of the complainant. There is no doubt therefore as to the identity of the perpetrator. This court was not persuaded by the Appellant’s testimony to the effect that the lodging of the complaint to the police was motivated by a grudge that existed between him and the mother of the complainant. The evidence adduced before court clearly showed that the Appellant and the mother of the complainant were separated at the time of the incident. They were not living together. Indeed, the mother of the complainant and left the complainant under the Appellant’s custody. There was no reason therefore for there to be a grudge between the Appellant and the complainant’s mother. In any event, no mother would cause her daughter to be defiled in order to settle a score with a man. This court formed the view that the Appellant’s defence was highly improbable and crafted specifically in an attempt to exonerate him from the crime. He was a perpetrator of the sexual assault.

12. The upshot of the above reasons is that the appeal lacks merit and is hereby dismissed. The custodial sentence meted on the Appellant is legal. This court will not interfere with the same. It is so ordered.

DATED AT KITALE ON THIS 17TH DAY OF MAY, 2022. L. KIMARUJUDGE