[2022] KEHC 11911 (KLR)

Wako v Republic (Criminal Appeal E016 of 2021) [2022] KEHC 11911 (KLR) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11911 (KLR)

Republic of Kenya

In the High Court at Marsabit

Criminal Appeal E016 of 2021

JN Njagi, J

June 9, 2022

Between

Halkano Wako

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence in Marsabit CM`s Court SOA Case No.12 of 2020 delivered by Hon. Mbayaki Wafula, SRM, on 27/7/2021)

Judgment

1. The appellant was convicted for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No.3 of 2006 and was sentenced to serve 20 years’ imprisonment. The particulars of the offence were that on the 27th February 2020 in Marsabit Central Sub-County within Marsabit County he intentionally caused his penis to penetrate the anus of GS (herein referred to as the complainant), a child aged 14 years.

2. The appellant was aggrieved by the conviction and the sentence and filed the instant appeal. The grounds of appeal are:1)That the learned trial magistrate erred in law and in fact by filing to note that the prosecution witnesses gave inconsistent, contradictory and conflicting testimonies.2)That the learned trial magistrate erred in both law and fact in failing to note that the prosecution case was not proved beyond reasonable doubt.3)That the learned trial magistrate erred in both law and fact by failing to order DNA test according to the provisions of section 36 of the sexual offences act.4)That the learned trial magistrate erred in both law and fact by rejecting the appellants defence without gibing cogent reasons.5)That the sentence imposed by the lower court was in contravention of the law.

The Evidence 3. The case for the prosecution was that the complainant was a boy of 14 years of age. He was staying with his mother PW2. That on the material day the complainant was grazing his family animals in the bush. The appellant was also herding the animals of his employer at the same place. He was a person well known to the complainant. That the appellant approached him and gave him bhang to smoke. That after he smoked the drug he became disoriented. The appellant then forced him to lie down on his belly. The appellant removed the complainant’s clothes and pressed him to the ground. He threatened to stab him if he looked backwards. The appellant inserted his penis into the complainant`s anus and defiled him. The complainant threatened to report him on going home. The appellant threatened to kill him if he dared to do so. The appellant gathered his animals and took them home.

4. That the complainant went home but he did not report to his mother PW2 until on the 1/3/2020. The complainant`s mother went to the home where the appellant was working. She inquired from him but he denied committing the offence. She took her son to a local dispensary. She called the area chief PW3 who went to the dispensary. The chief made inquiries from the appellant and referred them to the police. The appellant was taken to Marsabit Police Station.

5. The case was investigated by PC Wafula PW6. On 2/3/2020 she escorted the complainant to Marsabit Referral Hospital. He was examined by Dr. Halake Dido PW4 who observed that he had loss of anal sphincter tone with redness and swelling on the anus. The doctor concluded that there was forceful penetration into the anal region. The doctor filled a P3 form, P.exh.1, to that end.

6. Later in the month of March 2021 the complainant was taken to the same hospital and examined by a dentist who assessed his age at between 15 and 17 years. The report was Pexh.2 and OPG X-ray P.exh.3.

7. In his defence the appellant stated in a sworn statement that he was employed as a herder by one Mohamed Kala Roba. That on the 27/2/2020 his employer sent him to go and bring the animals from the grazing fields. That he went and brought the animals on 1/3/2020. That after he returned to the home of his employer, some elders went to the home and asked him whether he had defiled the complainant herein. He denied it. He and the complainant were taken to the health center where he was examined. The complainant was referred to Marsabit Hospital for further examination.

8. The appellant said that the case was a fabrication by the complainant`s grandfather because he had refused to graze his animals on 27/2/2020 and declined to return them home on that day. That he did not have an opportunity to meet the complainant on that day as he had gone to pick his employer`s animals from the grazing fields.

Submissions– 9. The appeal proceeded by way of written submissions. The appellant submitted that the trial court failed to consider his defence that the matter was a fabrication due to a grudge between him and the grandfather to the complainant.

10. The appellant submitted that the evidence of the prosecution witnesses was uncorroborated and contradictory. That the complainant in his evidence stated that he could not recall the date of the incident. That his mother said that it occurred on 27/2/2020 and was reported on 1/3/2020. That his mother said that the complainant told her that he had been defiled however that the complainant indicated that it is other herders who informed his mother about the incident. The appellant submitted that the complainant was couched in his evidence.

11. It was submitted that there was no medical evidence in the form of DNA to link the appellant with the crime. That the fact that the complainant had taken bhang creates doubt on the credibility of his evidence.

12. The appellant submitted that the trial court failed to take into account his mitigation.

13. The State Prosecution Counsel on his part submitted that the case was proved beyond reasonable doubt. That the complainant gave a direct account of what was done to him which evidence was corroborated by that of the doctor PW4 who observed that he had loss of anal sphincter tone which was swollen. Therefore, that penetration was proved.

14. It was submitted that the issue of a grudge did not arise during the trial. That the trial court did consider the appellant`s defence in totality and came to the conclusion that the evidence adduced by the prosecution outweighed the appellant’s defence.

15. It was submitted that the age of the complainant was proved at 14 years. That the sentence of 20 years was proper. That the appellant`s mitigation was considered vis a vis the nature of the offence and the age of the victim. That the appeal is devoid of merit.

Analysis and Determination– 16. This being a first appeal, the duty of the court was as set out in the case of Okeno v Republic (1972) EA 32 that:-“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination ( Pandya v Republic (1957) EA 336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. 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 finding 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, see Peters vs Sunday Post [1958]EA 424. ”

17. The appellant challenged the decision of the trial court on the ground that the evidence adduced by the prosecution witnesses was contradictory in that the complainant said that he could not recall the date the incident took place while his mother said that it took place on the 27/2/2020. In my view this is not a contradiction as the complainant simply says that he could not recollect the date that the incident took place.

18. The other contradiction pointed out was that the complaint`s mother testified that the complainant is the one who reported the defilement to her while the complainant said that it is other herders who reported the incident to her. Even though there was contradictory evidence on the issue, I do not think that it is one that went to the substance of the case. It was therefore not a material contradiction in the case. The fact is that the complainant`s mother was informed of the incident and she took action.

19. The appellant argued that there was no medical evidence adduced in the case to link him with the offence. That no DNA test was conducted to ascertain whether he was connected with the offence.

20. The position of the law is that an offence of defilement can be proved by other ways other than by way of medical evidence. In Kassim Ali v Republic (2001) eKLR the Court of Appeal held that the offence of rape can be proved by way of circumstantial evidence or the evidence of the victim. This also applies to the offence of defilement. There is then no requirement in law that defilement has to be proved by way of a DNA test.

21. The appellant further argued that the trial court did not consider his defence that there was a grudge between him and the complainant’s grandfather. However, this is not true as the trial magistrate did consider the appellant`s defence and said that he did not allude to it when he cross-examined the prosecution witnesses. I have also considered the appellant`s defence. It is not believable that the complainant would have come up with such serious allegations against the appellant simply because he had refused to take care of the herd belonging to the grandfather to the complainant. There was no evidence that the complainant was aware that the appellant had refused to graze his grandfather`s animals. The fact that the appellant did not raise the issue when he cross-examined the complainant and his mother on the issue can only mean that the defence was an afterthought. The trial court rightly dismissed the defence.

22. On my own analysis of the evidence I find that all the elements of defilement were proved. An x-ray of the complainant`s dental formula was taken at Marsabit County Referral Hospital in March 2021 and his age at that time was determined as between 15 and 17 years. This means that in the year 2020 he was aged 14 years. The age of the complainant was therefore proved.

23. The complainant was examined by Dr. Halake PW4 who found that he had loose anal sphincter which was also swollen. The doctor concluded that the injuries were consistent with defilement. The evidence of the doctor was not challenged. I thus have no reason to differ with the findings of the doctor. The defilement was supported by medical evidence. The fact that the complainant had suffered injuries in his anal canal lends credence to his evidence that the appellant had defiled him. Penetration into the anus was therefore proved.

24. The appellant was a person well known to the complainant. The appellant admitted that he was well known to the family of the complainant. The complainant identified the appellant as the person who defiled him.

25. In the whole I find that the evidence adduced against the appellant was cogent and overwhelming. The charge of defilement was proved beyond reasonable doubt. The appellant was rightly convicted of the offence. The appeal on conviction therefore lacks merit and is dismissed.

26. The sentence for the offence of defilement where the victim is between the age of 12 and 15 years is a sentence of not less than 20 years. The trial court does not seem to have imposed any sentence after stating that the offence carried a minimum sentence of 20 years. This court has power to impose a sentence that was not imposed by the lower court. I sentence the appellant to serve 20 years’ imprisonment, the same to commence from the date of plea, i.e. 3/3/2020.

Delivered, dated and signed at Marsabit this 9thday of June 2022. J. N. NJAGIJUDGEIn the presence of:Mr. Magero for RespondentAppellant:- Present in personCourt Assistant: - Peter14 days R/A.