[2022] KEHC 3024 (KLR)

Tebareng v Republic (Criminal Appeal 55 of 2020) [2022] KEHC 3024 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3024 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Criminal Appeal 55 of 2020

HPG Waweru, J

May 12, 2022

Between

Festus Kibet Tebareng

Appellant

and

Republic

Respondent

(Appeal from original Conviction and Sentence in Maralal Sexual Offence Case No 22 of 2018 – R K Koech, PM)

Judgment

1. The Appellant herein,Festus Kibet Tebareng, was convicted after trial of defilement contrary to section 8(1) & (3) of the Sexual Offences Act, No 3 of 2006. It was alleged that on 29/10/2018 at [Particulars Withheld] Administration Police lines in Samburu-East Sub-County within Samburu County, he intentionally and unlawfully caused his penis to penetrate the vagina of one NL, a child aged 12 years. On 26/11/2020 he was sentenced to twenty (20) years imprisonment. He has appealed against both conviction and sentence.

2. The petition of appeal raises a number of grounds, including –(i)That the prosecution evidence was inconsistent and contradictory.(ii)That the Appellant was not properly identified as the perpetrator of the crime.(iii)That the trial court demonstrated “outright bias” against the Appellant and got emotionally involved in the trial.(iv)That the trial court failed to properly consider the Appellant’s defence.(v)That the charge was not proved beyond reasonable doubt.(vi)That the sentence was “excessive…in the prevailing circumstances”.

3. Learned counsel for the Republic supported the conviction upon the main ground that the prosecution proved its case beyond reasonable doubt, and that all the ingredients of the offence were proved to the required standard.

4. Learned counsels chose to argue this appeal by way of written submissions. I have read and considered those submissions. I have also read through the record of the trial court in order to evaluate all the evidence placed there and arrive at my own conclusions regarding the same. This is my duty as the first appellate court. I have borne in mind however, that I neither saw nor heard the witnesses myself, and I have given due allowance for that fact.

5. When the Appellant’s trial started he was not defended by counsel. After the first prosecution witness (the complainant – PW1) had testified the Appellant hired counsel to defend him. The counsel applied for recall of PW1 for cross-examination. Without any objection by the prosecution the application was allowed. In person the Appellant had only very briefly cross-examined PW1. His counsel subjected her to a detailed cross-examination when she was recalled.

6. In her testimony-in-chief, which was unsworn after a voire dire examination found her not to understand the meaning of an oath, PW1 narrated in great detail how the Appellant’s co-accused had led her to the house of the Appellant and left her there with the Appellant; and how the Appellant had removed her clothes and forcibly had sexual intercourse with her several times in the course of the night. The co-accused was acquitted of the charge of “benefiting from child prostitution contrary to section 15(b) of the Sexual Offences Act, the particulars being that she had knowingly procured PW1 “for purposes of a sexual orgy”.

7. When she was subsequently cross-examined by counsel, PW1 stated, inter alia –“…my mother beat me when I went home after the incident. She was asking me where I had gone. She did not ask me anything else…“…I narrated what happened to the police after I had been beaten by my mother. I told the police things that did not happen – due to the beating.”“…I met somebody that I did not know that day; the person who took me to his house was not well known to me prior to the incident….I was asked to pick out somebody from a parade….”In re-examination PW1 stated, inter alia –“…I am a student at a school in [Particulars Withheld]. I am in class VIII. I want to be a lawyer when I grow up. I came to court on 28/05/2019 and testified. I have not talked with anybody regarding what transpired in court. Nobody told me what to come and tell the court. The accused did not tell me what to tell the court…”The trial court then asked PW1 –“On 28/05/2019 you narrated a lengthy incident that happened on 29/10/2018. Did the incident that you narrated happen to you or not?”PW1 replied –“I was beaten by my mother and told to tell the court what I said. My mother is not at home. I don’t know why she does not want to come to court.”

8. Indeed PW1’s mother (JL who testified as PW4) was a reluctant witness. She had to be summoned by the court to go and testify. She disobeyed the summons and was arrested and remanded in custody before testifying. This is what she told the court in her testimony-in-chief, inter alia –“…PW1 told me she slept in the house of accused 1 and he attempted to have sex with her. She told me it was hard for the accused to penetrate her and he left her to leave his house around 5:00 a.m…”In cross-examination she denied that she had beaten PW1.

9. The effect of PW1’s testimony in further cross-examination was to destroy her earlier evidence given-in-chief that had fully implicated the Appellant in the offence charged. That is why the prosecution, and indeed the trial court itself, became alarmed and cross-examined PW1 to try and find out if she had been interfered with after she had earlier testified. PW1 however was firm that she had not been interfered with, and that the interference had been from her own mother (PW4) when report of the alleged defilement was made to the police. Her mother had assaulted her and forced her to tell the police what had actually not happened to her.

10. Despite the suspicion of the prosecution and the trial court that PW1 had been interfered with, leading to her evidence given in the further cross-examination that very materially contradicted and destroyed her earlier evidence given–in-chief, no evidence of such interference was led. The conclusion by the trial court that the Appellant had interfered with PW1 and other witnesses, merely because her evidence in further cross-examination, so gravely contradicted her earlier testimony, was not supported by any evidence and was an indication of grave bias on the part of the court against the Appellant.

11. Furthermore, it was not open to the trial court to pick and choose what portions of the evidence given by PW1 to believe and which to ignore. The court chose to believe and rely upon the earlier evidence of PW1 and completely ignored the contradictory evidence given in the further cross-examination. That was a grave error.

12. Although PW1 was not formally declared a hostile witness, that is what she actually was, as is evidenced by her cross-examination by the prosecutor and the trial court. By completely disowning her earlier testimony that had fully implicated the Appellant in the offence, she became an unreliable and untrustworthy witness. Her entire evidence, not just portions of it, was of little probative value, and without any other independent and credible evidence connecting the Appellant to the offence, he should have been acquitted.

13. There was no such other credible independent evidence. The medical evidence tendered was inconclusive as to whether she had been recently penetrated. Beyond the fact that she was under 18 years old, her exact age was not established; the medical assessment of her age did not even estimate her proper age. The exact age of the defiled minor is crucial in determining the proper sentence for the offender under section 8 subsections (2), (3) or (4) of the Sexual Offences Act.

14. Upon my own evaluation of the evidence placed before the trial court, I am not satisfied that the Appellant’s conviction is safe at all. It is hereby quashed and the sentence imposed upon him set aside. He shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered.

DATED AND SIGNED AT NANYUKI THIS 11THTH DAY OF MAY 2022H P G WAWERUJUDGEDELIVERED AT NANYUKI THIS 12TH DAY OF MAY 2022