[2022] KEHC 12701 (KLR)

Victor Kipkoech Korir v Republic (Criminal Appeal E019 of 2021) [2022] KEHC 12701 (KLR) (15 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12701 (KLR)

Republic of Kenya

In the High Court at Bomet

Criminal Appeal E019 of 2021

RL Korir, J

June 15, 2022

Between

Victor Kipkoech Korir

Appellant

and

Republic

Respondent

(From Original Conviction and Sentence in Criminal Case S.O. Number. 46 of 2020 by Hon. J. Omwange at the Senior Resident Magistrate’s Court at Sotik)

Judgment

1. The appellant, Victor Kipkoech Korir was charged and convicted of the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, 2006. The particulars of the offence were that on August 19, 2020 at [Particulars Withheld] within Bomet County, intentionally caused his penis to penetrate the vagina of CD, a child aged 15 years old.

2. The appellant was also charged with an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. Particulars were that on August 20, 2020, at [Particulars Withheld] within Bomet County, intentionally touched the breasts of CD, a child aged 16 years old.

3. The Appellant pleaded not guilty to both the main charge and the alternative charge before the trial court and the case went to a full hearing in which the prosecution called six witnesses. At the close of the prosecution’s case, He was found to have a case to answer and was called to make his defence under section 211 of the Criminal Procedure Code. The Appellant opted to give sworn evidence and called no witnesses. By judgment delivered on June 21, 2021, the Appellant was convicted and sentenced to serve twenty (20) years’ imprisonment.

4. Being dissatisfied with the decision of the trial court, the Appellant filed the present Appeal against the conviction and sentence. In a homemade Memorandum of Appeal dated and filed on October 18, 2021, the Appellant raised the following five (5) grounds:a.That the learned trial magistrate erred in law and fact in failing to observe that section 36(1) of the Sexual Offences Act and section 26 of the same Act were not complied with. PW5 was pregnant necessitating the need for a DNA test.b.That the learned trial magistrate grossly erred in law and fact in not detecting that the appellant’s constitutional rights were violated as enshrined under article 49(f) (i) and (ii) of the Constitution of Kenya, 2010. c.That the learned trial magistrate erred in law and fact in relying on inconsistent, suspicious and fictitious evidence of the witnesses to impose a sentence of 20 years.d.That the learned trial magistrate while exercising his discretion, erred in law and in fact by failing to appreciate that at the time of his conviction, he did not take into account the Accused person’s probation report.e.That the learned trial magistrate erred in law and in fact in not considering that the Appellant was examined within 4 hours and that nothing was found to link the Appellant with the penetration of this alleged offence and age was not proved.

5. Subsequently, the firm of M/S Nyaingiri came on record for the Appellant and filed thirty supplementary grounds of appeal dated November 22, 2021. In a nutshell, the said grounds related to whether the offence was proven, whether the trial was fair and whether the sentence was justitious. The Appeal was canvassed through written submissions.

Appellant’s Submissions 6. The Appellant submitted that it was erroneous for the trial court to disregard the victim’s admission that the Appellant was not the one responsible for her pregnancy and that it should have ordered for forensic examination as per section 36(1) and 26 of the Sexual Offences Act. He also submitted that his rights under article 49 (f) (i) & (ii) were violated since he was not arraigned before court within 24 hours as stipulated by the Constitution. That it was the duty of the Prosecution to explain to the court’s satisfaction the reason for the delay in arraigning him before the court. To this, he relied on the case of Albanus Mutua Muhia v Republic, Criminal Appeal Number Nairobi 120 of 2004 (unreported) and Gerald Macharia Githuku v Republic, Criminal Appeal No 119 of 2004. It was his submission that failure to provide a reasonable justification for the delay entitled him to an acquittal, the evidence before court notwithstanding.

7. The Appellant also submitted that the evidence adduced by the Prosecution witnesses was inconsistent,fictitious and suspect. He further submitted that the OCS at Sotik police station, Brenda and June Cheptoo and PC Kigen ought to have been summoned. That failure to summon them created a gap in the Prosecution’s case thereby not meeting the threshold for a criminal conviction.

8. Lastly, the Appellant submitted that the Prosecution failed to prove the ingredient of penetration since the evidence from the clinical officer indicated that there was nothing positive from the examination of the Appelant. That there being no evidence of spermatozoa meant that PW5, the victim’s testimony could not be believed since she testified that the Appellant had sex with her a second time and he did not use protection. That the medical evidence ought to have confirmed this but it did not. It was his prayer that the Appeal be allowed, conviction quashed and sentence set aside.

Respondent’s Submissions 9. The respondent submitted on two issues: whether the conviction was safe and whether the sentence was justitious. Firstly, it was their submission that the victim gave a vivid description of her encounter with the Appellant and that the trial court was guided by the provisions of section 124 of the Evidence Act in respect of dispensing with the issue of corroboration by medical evidence. Further, that her evidence was corroborated by that of PW6, the Clinical Officer who stated that there was clear evidence of penetration due to the presence of lacerations on the labia and presence of blood in the vagina. They also submitted that the Appellant was properly identified by the victim as she knew his place and had gone there voluntarily since he was well known to her. In addition, the Prosecution submitted that the issue of a grudge between the Appellant and the victim’s family was not established during the trial. It was their final submission that all the ingredients of the offence of defilement had been established adequately.

10. The Respondent submitted on sentencing that the offence warranted a mandatory minimum sentence of 20 years and that the court’s hands were tied where the law imposed such a sentence. Therefore, the sentence meted was justitious and legal.

Whether the Offence of Defilement was proven to the required Legal Standard. 11. It is the duty of the first Appellate court to carefully examine and analyze afresh the evidence presented from the lower court and draw its own conclusion. It must also bear in mind that it lacks the privilege of seeing and examining the demeanor of the witnesses first hand. (See Pandya v Republic [1957] EA 336 and Kiilu &anotherv Republic [2005] 1 KLR, 174]) Having reviewed the trial Record, the grounds of Appeal and the parties’ respective submissions, the following is the main issue for determination to be whether the offence of defilement was proven to the required standard.

12. The charge of defilement is premised on three main ingredients as stipulated by the law under section 8 (1) of the Sexual Offences Act No 3 of 2006. See GOO v Republic [2016] eKLR as the age of the victim ( must be a minor), penetrarion; and the proper identification or recognition of the perpetrator.

13. Section 8 (1) of the Sexual Offences Act provides as follows:“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.(5)It is a defence to a charge under this section if -(a)it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and(b)the accused reasonably believed that the child was over the age of eighteen years.(6)The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.(7)Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children’s Act.(8)The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.”

The Age of the Victim 14. The importance of proving the age of a victim in a defilement case cannot be gainsaid. It is the age of a victim that determines the gravity of the offence and the subsequent punishment to be meted in accordance with the graduated sentences under the Sexual Offences Act. The Court of Appeal in Nairobi in Eliud Waweru Wambui v Republic [2019] eKLR restated its earlier in Mombasa in the case of Hadson Ali Mwachongo v Republic [2016] eKLR where it held as follows:-“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of victim. In Alfayo Gombe Okello v Republic Cr App No 203 of 2009 (Kisumu). This Court stated as follows;‘In its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1)....” [underlining mine for emphasis].

15. Similarly, in John Otieno Obwar v Republic [2011] eKLR, Asike Makhandia, J (as he then was) observed:-“Defilement is a strict offence, whose sentence upon conviction is staggered depending on the age of the victim. The younger the victim, the stiffer the sentence. Accordingly, it is important that the age of the victim be proved by credible evidence.”

16. The age of a victim in a defilement case trial case can be proven in different ways as stated by the Ugandan Court of Appeal in the case of Francis Omuroni v Uganda, Criminal Apapeal No 2 of 2000:-“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense..”

17. In the present Appeal, PW1, Mercy Sigei who was the victim’s sister testified that the victim’s date of birth was 1/7/2005 and referred to her clinic card (PMFI-1). PW3, the investigating officer produced the same clinic card as PEXH-1. The victim later also testified that her date of birth was 1/7/2005. Her age remained uncontroverted throughout the trial but has now been raised as a ground of appeal. I shall return to this ingredient later in this Judgment.

Identification/Recognition 18. In the present appeal, the evidence of identification has not been controverted. The victim testified that she knew that the Appellant’s house and that when the Appellant called her, she went there voluntarily at about 10. 00pm. The Appellant also stated that he knew her as a neighbour. PW1, PW2 Vincent Sigei who was the victim’s brother in law, PW4 P.C. Leonard Kirui who was the arresting officer all testified that the victim was found in the Appellant’s house at about 5. 00am the morning after her disappearance from home. Indeed the Appellant admmitted in his defence that he was with the victim in his room when PW1, PW2 and PW4 found them. It is therefore not in doubt that the Appellant was positively identified by the three prosecution witnesses. His admission was material as he placed himself at the scene. I therefore find that the Appellant was positively identified as the person who was with the victim on the material night.

Penetration 19. The second element in a charge section 2 of the Sexual Offences Act defines penetration as:“The partial or complete insertion of the genital organ of a person into the genital organs of another person.”

20. Penetration is proven either through the evidence of the child corroborated by medical evidence or in other circumstances, through the sole evidence of the child. Section 124 of the Evidence Act provides guidance for how the court should deal with the sole evidence of a child. It must be satisfied that the minor is telling the truth and record its reasons for believing the same, in order to sustain a conviction. The said section provides as follows:-“124. Notwithstanding the provisions of section 19 of the oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other evidence in support thereof implicating him.Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”

21. In the case of Bassita v Uganda SC Criminal Appeal No 35 of 1995, the Supreme Court stated as follows in proving penetration:-“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, sexual intercourse is proved by the victim’s 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.”The Supreme Court went on to state that:-“For evidence to be capable of being corroborated it must:(a).Be relevant and admissible (Scafriot [1978] QB 1016).(b).Be credible (DPP v Kilbourne [1973] AC 729)(c).Be independent, that is emanating from a source other than the witness requiring to be corroborated (Whitehead, J I KB, 99)(d).Implicate the accused.”

22. There is no doubt in this case that penetration was proved. The complainant who testified as PW told the court that:-“...we talked for 5 minutes and then went to bed. Then after some talk he undressed me. I was wearing a skirt, shirt and panty which I removed. He also undressed himself and we had sex....He did this twice that night. In the first time, the accused used protection and did not use protection at the 2nd time.”

23. During the cross examination, the victim again stated that she spent the night with the accused and they had sex. She stated that though she was found pregnant, the accused was not responsible for the pregnancy. This evidence shows that the complainant was clear in her testimony that she engaged in sexual intercourse with the Appellant.

24. The evidence of the complainant was corroborated by the medical evidence adduced by PW6, Kirui Kibet the clinical officer who examined her and the Appellant at Sotik Health Centre. He testified as follows:-“.... She had a small laceration on the labia and had a whitish discharge. The laceration is indicative of penetration. In conclusion, there was evidence of sexual penetration. There was a small spot of blood in the vagina which still indicated penetration. I did a HVS and there was no spermatozoa....I examined the accused on the same date and did not find anything....Spermatozoa can stay up to 24 hours if there was no protection. The duration of the examination was 4 hours after the alleged act. This only lapses when the accused used protection.... the hymen was broken but not freshly hence longstanding.”

25. It was evident from the clinical officer that the victim had been penetrated. The medical evidence coupled with the complainant’s testimony and the proven fact that she had spent the night at the Appellant’s home from where they were arrested was corrobative and leads me to a finding that indeed there was penetration.

26. With respect to penetration the appellant argued that the medical examination on the victim did not show the presence of spermatozoa. This was a mute argument as the victim stated that he had used protection. Further, the law is clear that the presence or absence of spermatozoa does not necessarily negate that there was penetration. As the Act suggests, penetration may be partial or full. The question in this appeal is whether the evidence of penetration was watertight as against the appellant and proved to the required standards.

27. I now return to the issue raised on the age of the complainant. The appellant contended that the age of the complainant was falsified. He submitted that the Child Health Card produced as evidence that she was born on July 1, 2005 was not authentic. That the details were hand printed and some entries showed immunization dates indicated as 2003 and 2004.

28. The respondents did not submit on the contestation of age.

29. I have looked at the trial court proceedings and observed that the issue of a falsified Child Health Card was not raised and neither did the trial court make any observation on it. I have also critically scrutinized the document. It is true as submitted by the appellant that the entries are hand printed. I must however take judicial notice that entries in such documents are usually hand printed.

30. On the issue of entries relating to birth date and immunization dates, I observe that the date of birth is indicated as 1/7/2005. There are two immunization dates indicated as 5/9/2005 and October 24, 2005 with the number 5 appearing as having been superimposed on number 3. The third entry shows 2/1/04. It is apparent to this court therefore that either the Health Card(Prosecution Exhibit 1) was tampered with after it was produced in court as an exhibit or was not an authentic document from the beginning intended to show that the victim was born in the year 2005 and not 2003. Sadly, there was no other corroborating evidence on the age which would assist the court make a determination on whether the victim was actually born in 2005 and not 2003. The birth date of 2005 or 2003 would mean that the victim was aged 15 or 17 years respectively at the date of the offence being August 19, 2020.

31. It is my finding from my scrutiny of the prosecution evidence, that the age of the victim was not adequately proven. She may or may not have been a minor.

32. I have also considered the circumstances sorrounding the offence. The evidence on record shows that the victim received a call from the Appellant and she sneaked out of her home after directing the younger siblings to lock the door after her. According to her testimony, she walked to the Appellant’s house where they freely engaged in sex then slept till 5. 00am when they were woken up by her guardians and the police. It is clear from her testimony that the sexual intercourse though unlawful was jointly pre-planned and consensual. With doubt having been cast on her age, the charge of defilement falters.

33. The legal threshold for a criminal conviction is well settled in law. The legal burden of proof falls on the Prosecution in all criminal trials. It must be proof beyond reasonable doubt. Lord Denning in the case of Miller v Minister of Pensions 1942 AC stated thus:-“It need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadows of doubt. The law would fail to protect the community if it admitted forceful possibilities to deflect the course of justice. If the evidence is so forceful against a man to leave only a remote possibility in his favour which can be dismissed with the sentence, of course it is possible but not in the least probable, the case is proved beyond reasonable doubt but nothing short of that will suffice.”

34. Similarly, in the case of United States v Smith, 267 F 3d 1154, 1161 (DC Cir 2001) (CitingIn re Winship, 397 US 358, 370, 90 S Ct 1068, 1076 (1970) (Harlan, J concurring), the Federal Court of United States stated:“The burden is upon the state to prove beyond reasonable doubt that the defendant is guilty of the crime charged. It is a strict and heavy burden. The evidence must overcome any reasonable doubt concerning the defendant’s guilt, but it does not mean that a defendant’s guilt must be proved beyond all possible doubt. A reasonable doubt is a fair, actual and logical doubt based upon reason and common sense. A reasonable doubt may arise either from the evidence or from a lack of evidence. Reasonable doubt exists when you are not firmly convinced of the defendant’s guilt, after you weighed and considered all the evidence. A defendant must not be convicted on suspicion or speculation. It is not enough for the state to show that the defendant is probably guilty. On the other hand, there are very few things in this world that we know with absolute certainty. The state does not have to overcome every possible doubt. The state does not have to overcome every possible doubt. The state must prove each element of the crime by evidence that firmly convinces each of you and leaves no reasonable doubt. The proof must be so convincing that you can rely and act upon it in this matter of the highest importance. If you find there’s a reasonable doubt that the defendant is guilty of the crime, you must give the defendant the benefit of that doubt and find the defendant not guilty of the crime under consideration.”

35. It is my finding therefore bearing in mind the standard of proof in criminal cases, that the totality of the evidence does not prove the charge to the required legal standard. The benefit of the doubt must go to the Appellant. Having found the age of the victim not proved to the required legal standard and that the sexual act was consensual, it follows that no offence known in law was committed by the Appellant.

36. In the final analysis, I quash the conviction and set aside the sentence. The appellant is set at liberty forthwith unless otherwise lawfully held.

37. Orders accordingly.

JUDGMENT DELIVERED, DATED AND SIGNED THIS 15TH DAY OF JUNE, 2022. ...................................R. LAGAT-KORIRJUDGEJudgment delivered in the presence of Mr.Muriithi for the State, No Appearance for the Appellant Counsel, Appellant present and Kiprotich( Court Assistant).