[2022] KEHC 10671 (KLR)

Wanjala v Republic (Criminal Appeal 1 of 2019) [2022] KEHC 10671 (KLR) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10671 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal 1 of 2019

JM Bwonwong'a, J

May 6, 2022

Between

Brian Wanjala

Appellant

and

Republic

Respondent

(Being an appeal against the judgment of J. King’ori, CM, dated 27/12/2018/in Bungoma Chief Magistrate’s Court in Criminal Case Number 42 of 2017 Republic v Brian Wanjala)

Judgment

1. In his petition of appeal, the appellant has appealed against his conviction and sentence of fifteen (15) years imprisonment in respect of the offence of defilement contrary to section 8(1) as read with section 8 (4) of the Sexual Offences Act No. 3 of 2006.

2. In this court the appellant has raised seven grounds of appeal in his petition of appeal. They are as follows:1. That the trial magistrate erred in law and fact by failing to appreciate that the prosecution case was built on fabrication lacking in material particulars and probative value to warrant a conviction.2. That the trial magistrate erred in law and fact in failing to appreciate that there was no compliance with the provisions of section 36 (1) of the Sexual Offences Act as no medical test was conducted by the prosecution to ascertain whether or not the appellant committed the present offence.3. That the trial magistrate erred in law and fact by failing to appreciate that the area of jurisdiction of the alleged offence as per the contents of the charge sheet and the testimony of the complainant was that the offence was committed at [particularsWithheld] within Bungoma thus rendering the prosecution’s case unproven.4. That the trial magistrate erred in law and fact by failing to appreciate that there was no compliance of section 214 of the Criminal Procedure Code on the basis that the exact place of incident was never disclosed nor did they attempt to demonstrate the same in the interests of justice5. That the trial magistrate misdirected herself in law and fact that the period lapsed before the arrest and prosecution creating reasonable doubt in the prosecution’s case and no explanation was offered as for the delay of the legal action by the prosecution6. That the trial court’s decision was made without proper jurisdiction and fully based on belief and anticipation not warranted by evidence on record.7. That the trial court erred in law and fact by basing a conviction on the weakness of the appellant’s defence without considering the strength of the prosecution’s case.

3. The appellant also filed supplementary grounds of appeal. They are as follows.1. That the trial magistrate erred in law and fact by failing to find that the appellant was charged, tried and convicted over an incurable defective charge sheet hence his conviction was unsafe.2. That the prosecution intentionally failed in its duty to summon crucial witnesses to testify which was detrimental to their own case.3. That the trial magistrate erred in law and fact by failing to record and comply with section 211 of the Criminal Procedure Code leading to a mistrial4. That that the trial magistrate erred in law and fact by failing to analyze that the appellant was never informed of his right to legal representation which lead to an unfair trial5. That the mandatory minimum sentence of 15 years meted out upon the appellant derives him of equal benefit and protection of the law contrary to article 50(2) and section 216, 329 and 333(2) of the Criminal Procedure Code((Cap 75) of the Laws of Kenya.6. That the trial magistrate failed to analyse that the prosecution witnesses whose evidence was contradictory, inconsistent and incredible7. That the trial court rejected the appellant’s defence for no cogent reason.8. That there were violations of Article 49 (1) (c), (h) and Article 50 (2) (g) & (h) of the Constitution of Kenya.9. That the medical officer Festus Ng’etich and Clair Wanyama never testified to authenticate their evidence in line with section 77 of the Evidence Act (Cap 80) Laws of Kenya.

The submissions of the appellant. 4. In respect of ground 1 of his supplementary grounds of appeal the appellant has submitted that the charge sheet was defective in indicating that the age of the complainant was 16 years while the P3 form indicated that she was 15 years. According to the particulars in the charge sheet the incident took place in Kimilili Town which is contrary to the evidence of Pw 1 whose testimony was that the incident took place at [Particulars Withheld]. It was the appellant’s submission that these inconsistencies made the charge sheet defective and incurable.

5. Another ground raised by the appellant was that the prosecution failed to call crucial witnesses. That among the crucial witness never called to testify was Festus Ng’etich who did the age assessment of the complainant, Clair Wanyama who filled the treatment cards, Balima, Betina who are the sisters to the complainant and the husband to RW (Pw 2). The appellant argued that the prosecution was duty bound to call all crucial witnesses to establish the truth in the case. He cited the case ofBukenya v Uganda [1972] EA 549 which stands for the proposition that the court may draw an adverse inference from the prosecution’s failure to call and avail important witnesses.

6. The appellant also contended that the trial was unreasonably delayed by the prosecution with the court granting several last adjournments. Further that the alleged offence took place between 29th and 30th May 2017 and his arrest took place on 9th June 2017. He submitted the delay violated his right to a speedy trial as required by Article 50 of the Constitution of Kenya.

7. Another ground raised by the appellant is that the trial court did not comply with the requirements of section 211 of the Criminal Procedure Code. He argued that the failure is not curable. He submitted that he was deprived of the benefit of being explained by the court the substance of the charge

8. The appellant submitted that he was not informed of his right to choose and be represented by an advocate of his choice or have an advocate assigned to by the state. He stated that he is illiterate with no legal knowledge. He therefore argued that he could not adequately cross-examine witnesses and as such his trial was compromised. In that regard the appellant cited the case of Petty v Greyhound Racing Association[1968] 2 All ER 545 at page 549.

9. The appellant submitted that the prosecution witnesses were unreliable and gave contradictory evidence. First, John Malemba (Pw 3) a Clinical Officer testified that the complainant was 15 years old. However, in her testimony she testified that she is 16 years having been born on 30th October, 2002.

10. The appellant submitted that the trial magistrate rejected his defence without any cogent reason yet the prosecution failed to call its crucial witnesses to rebut the same as provided under the provisions of section 212 of the Criminal Procedure Code.

11. On the sentence the appellant submitted that the minimum mandatory sentence provided under section 8(4) of the Sexual Offences Act deprived the trial court of the legitimate jurisdiction to exercise discretion and fails to conform to the tenets of a fair trial process that accrue under the Constitution. Further, that the trial court failed to consider mitigating factors before sentencing him. That this was in contravention of article 27 of the Constitution of Kenya.

The submissions of the respondent 12. Joan Tarus, prosecution counsel filed written submissions for the respondent. She opposed the appeal and submitted that the trial court did not err in finding that there was sufficient evidence to warrant the conviction. She further submitted that the court made a positive determination on the issues of age, penetration and identification in respect of which there was corroboration.

13. She also submitted that the trial court made a correct determination that the complainant’s vagina was penetrated by the appellant’s penis and a treatment note and a P3 form produced to that effect. That the trial court noted that the complainant was truthful and candid while noting her demeanor.

14. On identification, it was submitted that the complainant was with the appellant for several days prior to and after the commission of the offence and there was no doubt that he was the one who committed the offence. Consequently, this was a case of recognition.

15. The prosecution counsel submitted that section 36(1) of the Sexual Offences Act is couched in discretionary terms while seeking to establish the linkages between the appellant and the offence. Further that DNA evidence is not the only evidence for which commission of a sexual offence may be proved. Reliance was placed on the case of Robert Mutungi Murumbi v Republic, Criminal Case No. 5 of 2013, where the court held that section 36(1) of the act empowers the court to direct a person charged with an offence under the act to provide samples for tests, including for DNA testing to establish linkage between the accused person and the offence. Further that the provision is not couched in mandatory terms. In addition, decisions of this Court abound which affirm the principle that medical or DNA evidence is not the only evidence by which commission of a sexual offence may be proved.

16. It was submitted for the respondent that the defect in the charge sheet did not prejudice the appellant. That the discrepancy in the place of commission of the offence did not negate the offence and the defect is curable under section 382 of the Criminal Procedure Code. She also submitted that the trial court had jurisdiction to try the case and urged the court to dismiss the appeal as it is unmerited.

Analysis and determination in respect of the grounds of appeal 17. As this is the appellant's first appeal, the function of this court is well settled. It was held in the case of Okemo v R[1977] EA 32 and further in the Court of Appeal case of Mark Oiruri Mose v R [2013] eKLR that this court is duty bound to consider the entire evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.

18. In line with the foregoing, this court in determining this appeal is to satisfy itself that the ingredients of the offence of defilement, or alternatively that of the offence of committing an indecent act with a child, were proved beyond any reasonable doubt. Additionally, I have considered the submissions of the parties.

19. The evidence of the complainant (Pw 1) is that on 25/5/2017 at around 3. 00 pm she went to the house of the cousin of the appellant at [Particulars Withheld] at the invitation of the appellant. During the night they had unprotected sex. They again had unprotected sex on 30/5/2017. On 1/6/2017 the appellant and the complainant went to Kimilili town. The appellant abandoned her at Kimilili town. From there she retuned to her home. She then told her parents what had happened. The parents then took her to Chwele hospital; where she was treated and issued with a P3 form. She also testified that the appellant was her friend for a long time.

20. RW (Pw 2) is the mother of Pw 1. She testified that Pw 1 is her daughter and was born in 2002. She further testified that she had the clinical and baptismal cards of Pw 1. Pw 2 further testified that on 25/5/2017 she sent Pw 1 to Sichei market. She did not return from that market. As a result, she began looking for her. On 28/5/2017 she reported her disappearance to the chief, the police and the village elders. On 1/6/2017 they learned that Pw 1 was seen at Khachonge market. They rushed there and found her. They interrogated her. She told them she was staying with the appellant. They then then took her to hospital. They also made a report to the police. As a result, the appellant was arrested.

21. Furthermore, the prosecution called No. 77813 Cpl Moris Ogolla (Pw 4) of Kipsigon police station; who is the investigating officer. Pw 4 testified that he issued a P3 form to the complainant. He found that the appellant was a neighbor of the complainant. Upon completion of his investigations he charged the appellant with defilement.After his rights were explained to him under section 211 of the Criminal Procedure Code (Cap 75) Laws of Kenya, the appellant elected to testify on oath. He did not call any witnesses in his defence. His testimony was as follows.

22. He testified that he is a boda boda rider. On 3/6/2017 he dropped two customers at Khachonge. On his way back, he met the village elder by the name Mulongo. The village elder told the appellant to drop him at the police station. He took him there. He was arrested at the police station. Shortly thereafter the complainant and her mother arrived at the police station. The father of the complainant who was already at the police station claimed that the appellant had eloped with his daughter. The father of the complainant also claimed that the appellant had taken his motor cycle and had failed to compensate him. He was eventually charged with this offence.

23. The key ingredients of the offence of defilement include proof of the age of the complainant, proof of penetration and proof that the appellant was the perpetrator of the offence.

(a) On the age of the complainant 24. I find as credible the evidence of both the complainant (Pw 1) and her mother Pw 2. PW 2 testified that the complainant was born in 2002. I therefore find that the complainant was about 15 years old when this offence was committed. That being so the complainant was then under the age of 18 years when she was defiled. The complainant was a minor.

25. I find that the prosecution did not lay a foundation for the reception of the evidence Festus Ngétich in respect of the age assessment of the complainant as required by law. I therefore rule as inadmissible the evidence of Festus Ngétich.

26. However, I find that the age of the complainant was proved by the credible evidence of her mother (Pw 2) and the complainant, who testified that she was born in 2002.

(b) On the issue of penetration 27. 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 organ of another person.’This position was fortified in the case of Mark Oiruri Mose v Republic[2013] eKLR in which the Court of Appeal stated that:“‘…Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ….’

28. In dealing with this issue I will revert to the record. When the complainant testified she took the court through how the relationship with the appellant began. She testified that the appellant was her boyfriend. She also testified that it is the appellant who approached and seduced her. That they engaged in unprotected sexual acts severally after he had taken her from her home. The complainant clearly described how the appellant put his penis into her vagina and that he did not use a condom. Furthermore, she testified that the incident happened many times on the night of 29th May 2019 and 30th May 2017. The medical report produced by John Malemba (Pw 3) as exhibit PEx.3. Exhibit PEX. 3 shows that the hymen of the complainant was broken. It also shows that there was no discharge and that she was not bleeding. He concluded that the complainant had been defiled. That being the position penetration was proved.

c) On whether the appellant was the perpetrator: 29. The appellant was identified by Pw 1 as the perpetrator of the offence. She testified that she had known the appellant since 2016 and they had been friends. This is therefore a case of recognition and not identification. Cpl Morris Ogolla (Pw 4), testified that he arrested the appellant after being identified by the complainant. This evidence corroborated the evidence of Pw 2 on the identification of the perpetrator. Consequently, I find that the appellant was positively recognized as the perpetrator.

30. Furthermore, the appellant also submitted that the prosecution intentionally failed in its duty to summon crucial witnesses to testify which was detrimental to their own case. He therefore invited the court to draw an adverse inference based on the authority of Bukenya v Uganda [1972] EA 549. The principle that the prosecution ought to call crucial witnesses to establish their case even if their evidence is adverse to its case cannot be doubted. In this regard, the appellant has submitted that crucial witnesses namely Festus Ng’etich who did the age assessment of the complainant, Clair Wanyama who completed the treatment cards, Balima, Betina who are the sisters to the complainant and the husband to RW(Pw 2) were not called.

31. I also rule as inadmissible the treatment cards that were completed by Clair Wanyama on the basis they amount to inadmissible hearsay evidence; since Clair Wanyama did not testify in the court below.

32. I further find that the evidence of the sisters and father of the complainant is not crucial as they did not witness the commission of this offence. Their evidence is in respect of tracing the complainant. The offence was proved even in the absence of their evidence.

33. Furthermore, the appellant raised the issue that the charge sheet was defective and incurable in both ground 3 of the petition of appeal and ground 1 of his supplementary ground of appeal. This is because the particulars of the charge sheet indicated that the offence was committed in Kimilili town within Bungoma and yet it was the complainant’s evidence that the offence was committed at [Particulars Withheld]. In this regard, I find as credible the evidence of the complainant that the offence was committed at [Particulars Withheld] and not at Kimilili town. I therefore find that the allegation in the charge sheet that the offence was committed at Kimilili town is a curable defect.

34. I find the defence evidence of the appellant to be incredible; in view of the ample, consistent and credible evidence of the prosecution. His defence is a mere denial which is without basis and is hereby rejected.

35. The appellant’s appeal fails in respect of conviction and is hereby dismissed.

36. On sentence, I find that the complainant was aged 17 years and 6 months old. I therefore find that the appellant was lawfully sentenced to the minimum mandatory prescribed sentence of 15 years imprisonment under Section 8(4) of the Sexual Offences Act. I therefore dismiss the appellant’s appeal against sentence as well.

37. In the premises, the appellant’s appeal fails and is hereby dismissed in its entirety.

JUDGEMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THROUGH VIDEO CONFERENCE THIS 6TH DAY OF MAY 2022. J M BWONWONG’AJUDGEIn the presence of: -Mr. Kinyua: court assistantThe appellant – Present in personMr. Ayiekha for the Respondent