[2023] KEHC 23273 (KLR)

Wambua v Republic (Criminal Appeal E038 of 2022) [2023] KEHC 23273 (KLR) (5 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23273 (KLR)

Republic of Kenya

In the High Court at Kitui

Criminal Appeal E038 of 2022

RK Limo, J

October 5, 2023

Between

Felix Wambua

Appellant

and

Republic

Respondent

(An Appeal arising from the decision of the Learned Chief Magistrate’s Court at Kitui CM (S.O No. 41 of 2018)

Judgment

1. The Appellant herein, Felix Wambua, was charged with the offence of defilement Contrary to Section 8(1) (3) of the Sexual Offence Act No. 3 of 2006 vide Kitui Chief Magistrate’s Court Sexual Offence No. 41/2018. The particulars are that on the 4th May, 2018 at around 7PM at Primary School within Kitui County, intentionally and unlawfully committed an act (sodomy) which caused penetration to one (name withheld) a child aged 14 years by inserting his penis to his genital organ namely (anus). He also faced an alternative charge but this appeal is against the principal charge upon which he was found guilty and convicted.

2. Below is the summary of the evidence tendered at the trial court.

3. The Complainant (name withheld) a boy child aged 14 years testified on oath that he was a pupil at Unyaa Primary School at class 7 where the appellant had been engaged by the school to teach music to the pupils. The Complainant stated on 4/5/2018 (the material date) the appellant went to the school dormitory at around 7PM and told the boys to line up at the corridor between the beds and asked them if there was any boy who wanted to learn a poem. He testified that when there was no volunteer he ordered them to kneel down before slapping him and asked him to follow him outside.

4. He further testified that the appellant led him to the kitchen where he removed his trousers and started touching his private parts and as he was doing so they suddenly heard footsteps and quickly asked him to hide but the complainant headed back to the dormitory but did not reach far as the appellant caught hold of him pulled him back and defiled him before asking him to go back to the dormitory.

5. The boy testified that he felt pain and wet after the ordeal and that the following day he informed a teacher known as Mrs. Kilonzi who promised to report the incident but later failed fearing the appellant because of his apparent closeness with the head teacher.

6. The Complainant stated that the following day as they went to church, he sneaked away home and informed his parents who took action by reporting to the Area Chief who referred them to Kitui Police Station where they reported the incident. He recalled that the appellant never liked associating with the girls in the school and that he preferred the boys adding that he used to take mangoes to them and pornographic materials to watch on his mobile phone. He however stated that he never watched the pornographic movies himself.

7. CMM (PW2), the victim’s mother testified and corroborated the evidence tendered by the victim. She added that after reporting the incident at Kitui Police Station, he took her son (complainant to the hospital for examination and treatment on 6th May, 2018 though the incident had occurred on 4th May, 2018.

8. Robinson Katana (PW3) who testified that he was a colleague of Dr. Nyakeo who was reported to have been out of the Country testified and tendered P3 Form authored by Dr. Nyakeo as P Ex 3. The P3 Form indicated that there was anal laceration. He further tendered Post Rape Care (PRC) Form as P Ex 2 and lab request form as P Ex 1.

9. CPL Franklyn Mutai (PW4) testified that he took over investigation file from CPL George Apima who had by then been transferred. His testimony largely touched on the action the police took when the report of defilement was made.

10. When placed on his defence, the appellant (DW1) conceded that he was engaged by Unyaa Primary School to train music and used to train pupils music from around 3:10PM to 4:30PM and would leave school after training of music as he was not a teacher as he was not a teacher in the said school.He denied committing the offence stating that he recalled caning the boys as a form of punishment. He also conceded that the dormitory of the boys was not far from where he trained the pupils in music.

11. The trial court evaluated the evidence and found that the prosecution’s case had been proved to the required standard because all the ingredients of the offence had been established and proved. The appellant was convicted and jailed for 25 years.

12. He felt aggrieved and filed this appeal raising the following grounds namely: -i.That the learned magistrate erred by relying on prosecution’s evidence which was not proved beyond reasonable doubt.ii.That the Prosecution’s case was a frame up and the documents tendered were unreliable.iii.That the Prosecution’s Case had no corroboration.iv.That the charge sheet and the evidence did not tally.v.That the scene of crime was not established or proved beyond doubt.vi.That the trial magistrate erred by rendering a conviction on a case that was not investigated.vii.That the sentence imposed was excessive.

13. In his written submissions, the appellant has raised a number of additional grounds albeit without leave of this court as stipulated under Section 350(b) of the Criminal Procedure Code. This Court shall therefore, not consider them because they have been raised improperly and are incompetent.

14. The appellant submits that the Prosecution’s Case was not proved as required by law pointing out that the Prosecution never presented other witnesses who were with the Complainant at the school and wonders why the prosecution failed to present one of the pupils as a witness to what occurred at the boys’ dormitory during the material time.

15. He urges this court to draw adverse inference to the failure by the Prosecution to call a teacher named Mrs. Kilonzo who got the initial report from the complainant that he had been defiled.

16. He further submits that the charge sheet was defective because the evidence tendered showed that he had sodomized a child yet the charge sheet indicated defilement. In his view he should have been charged under Section 162 of the Penal Code. The provisions of Section 162 of the Penal Code however, refers to unnatural offenses committed by two consenting adults and has no bearing to the charge upon which the appellant was charged with, save for the unnatural act of sodomy.

17. The appellant submits that the Prosecution’s case was not proved and blamed the complainant for trying to get a reason for speaking out of school.

18. The State through the Office of the Director of Public Prosecution has opposed the appeal. The state submits that it proved its case at the trial court pointing out that the evidence tendered proved the following crucial elements namely: -a.Age of the victimb.The act of penetrationc.Linking the appellant with the offence.

19. The State has mainly relied on the medical documents tendered, arguing that, the medical document to wit the P3 proved that the age of the victim was 14 years and that the doctor noted some lacerations on the boy’s anal area which corroborated the complainant’s complaint of pain while passing stool.

20. The Respondent contends that the appellant was well known to the complainant being a part-time teacher at the school and rules out any issue of mistaken identity.

21. It submits that the witnesses availed were sufficient to proof their case citing that the provisions of Section 143 of the Evidence Act does not require them to call a specific number of witnesses to prove their case. It cites the decision of Alex Luchodo versus Republic (2006) eKLR to buttress their contention.

22. It submits that under Section 124 of the Evidence Act, corroboration was not mandatory and the appellant’s contention that other witnesses should have been called do not hold any water. It submits that the Complainant's evidence did not require corroboration as his complaint was confirmed by medical evidence.

23. This Court has considered this appeal and the response made by the State. As a first appellate court, my duty is to re-evaluate and reassess the evidence tendered during trial with a view to coming to own conclusion.

24. The appellant as observed above was charged with the offence of defilement Contrary to Section 8(1) (3) of the Sexual Offence Act. Section 8(1) defines the offence of defilement as:-A person who commits an act which caused penetration with a child is Guilty of an offence termed as defilement.’’Section 2 of the Sexual Offence Act defines penetration as: -The partial or complete insertion of the genital organs of a person into the genital organs of another person.’’

25. Genital organs include the whole or part of male or female genital organs and for the purpose of the Sexual Offence Act includes the anus.The appellant contention that the charge sheet was defective for describing the offence as defilement instead of sodomy lacks basis in law.

26. This Court has however considered one of the grounds raised by the appellant which is in respect to proof of the Prosecution’s Case. It is a matter of law well settled that the Prosecution in Criminal Cases bears the burden of proof and that burden must be discharged beyond reasonable doubt.

27. The Prosecution’s Case as conceded by the State in this appeal hinged on the evidence of the complainant and the medical evidence tendered. This court has perused through the record of proceedings and notes that the medical evidence to wit the Laboratory Request Form, PRC Form and P3 Form (Exhibits 1,2 and 3 respectively) were tendered by one Robinson Katana from Kitui Referral Hospital who testified that he was testifying on behalf of one Dr. Nyakeo who had filed the P3 Form and who was reported to be out of the Country.

28. There is no problem for one medical officer to step into the shoes of another medical officer who cannot be availed for various reasons well stipulated under Section 33 of the Evidence Act.

29. However, before such evidence is taken, the witness must lay sufficient basis before he/she takes the witness stand. The provisions of Section 48 of the Evidence Act stipulates that; (i) opinions of experts in such fields as medicine, art or any other skill are admissible.if tendered by experts in the relevant field of expertise.

30. In this instance, the laboratory test form, the PRC Form & P3 Form are considered expert evidence requiring an opinion of an expert in the field of medicine. The witness called by the Prosecution to wit Robinson Katana, did not give his qualifications to establish if he was a competent witness under Section 48 of the Evidence Act to tender the medical evidence. he simply stated that he worked at Kitui Referral Hospital and was familiar with handwriting of Dr. Nyakeo. That in my view, was insufficient because it is hard to know if he was a competent witness because even a person working in say, the accounts office or pharmacy, could be familiar with the handwriting of a given doctor. Under Section 33 as read with Section 48 of the Evidence, PW3 was required to lay basis first before stepping onto the shoes of Dr. Nyakeo. Sadly, there was an omission by the State as well as the trial court and the net effect is that the Medical evidence tendered was rendered hearsay and therefore inadmissible in evidence.

31. It is also unfortunate that the trial court that took the evidence of PW1 is not the court that did the judgement and therefore, the Provisions of Section 124 of the Evidence Act and in particular the possibility of the trial court relying solely on evidence of the complainant on account of demeanor was not viable.

32. This Court has weighed its mind in this matter and in particular the role of the victim in regard to non-compliance of the Provisions of Section 33 and the 48 of the Evidence Act, I find that the complainant played no role. It would therefore, be unjust and a miscarriage of justice if the complainant is made to carry the burden of omission by the State and the trial court.

33. This Court finds that the trial court erred by admitting the medical evidence when the expertise of PW3 was not properly laid out. In the absence of the medical evidence the Prosecution’s case obviously could not stand for the reasons stated above in respect to the provisions of Section of 124 of the Evidence Act. In the circumstances of this case while I am inclined to allow this appeal which I hereby do by setting aside the conviction and the sentence, this court for the interest of justice finds that a retrial would meet the ends of justice. I will direct that the appellant be escorted back to the subordinate court for retrial. The Lower Court file be taken back to the Lower Court for that purpose and the appellant shall be escorted to the duty court for retrial before a different court of competent jurisdiction to try. The matter to be mentioned on 12th October, 2023 before the duty court.

DATED, SIGNED AND DELIVERED AT KITUI THIS 5TH DAY OF OCTOBER, 2023. HON. JUSTICE R. LIMO-JUDGE