[2022] KEHC 16374 (KLR)

Were v Republic (Criminal Appeal E 061 of 2022) [2022] KEHC 16374 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16374 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E 061 of 2022

RPV Wendoh, J

December 15, 2022

Between

Kevin Otieno Were

Appellant

and

Republic

Respondent

Judgment

1. This is an appeal against the judgment of the Hon the Chief Magistrate Migori which was delivered on March 8, 2022.

2. The appellant, Kevin Otieno Were, the appellant, was convicted for the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offence Act.

3. The particulars of the charge are that on diverse dates between May 7, 2021 and May 16, 2021, at [particulars withheld] area in [particulars withheld] sub county, intentionally caused his penis to penetrate the vagina of SDO a child aged 15 years. He was sentenced to serve 20 years imprisonment.

4. The appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act. No finding was made on the alternative charge.

5. The appellant was aggrieved by the judgment of the Chief Magistrate’s Court and preferred this appeal based on the following grounds;-1. That the offence of defilement was not proved to the required standard;2. That the court failed to comply with article 50 (2) (g) of the Constitution;3. That there were glaring contradictions in the prosecution evidence.

6. He therefore prays that the conviction be quashed and sentence be set aside.

7. Although Mr Mulama, learned prosecution counsel indicated that he would file his submissions within seven (7) days, by the time I am writing this judgment three (3) weeks later, there are no submissions filed.

8. In his submissions, the appellant contends that the evidence of the complainant and the doctor was contradictory as to when the offence was committed, in May 2021 or July 2021 and further that there was no medical evidence linking him to the charge.

9. This is a first appeal and it behoves this court to exhaustively examine all the evidence tendered before the trial court, analyse it and make its own determinations. The court is guided by the decision of Okeno v Republic (1972) EA 32.

10. The prosecution called a total of five (5) witnesses, PW1 the complainant CD; PW2 TAN, the complainant’s mother; PW3; PC Francis Murithi of Got Jope Police Post, PW4 PC (woman) Risper Boyana and PW5 Justus Mugati a Clinical Officer based at Migori County Referral Hospital.

11. PW1 testified on oath that she is a student at [Particulars Withheld] Primary School in class 7; that she met Kevin in July 2021 in a club and they became friends. He gave her some changaa and they went together to his house at the centre where they stayed till 1. 00pm; she then went to his house where she stayed for 2 days. His mother called her the next day and asked if she was married to the appellant and she agreed and so did the appellant confirm. During that time, they shared a bed and they had sex and that the appellant used a condom. Her mother went to the appellant’s home on May 16, 2021 with police and they were escorted to Migori Police Station. PW1 was later examined in hospital. She clarified that they were arrested in May 2021.

12. PW2 told the court that PW1 is her daughter, born on May 15, 2005; that PW1 disappeared from home on May 7, 2021 and she started making inquiries about her and learnt that she had been seen with Kevin; that at the time she disappeared, PW1 was staying with her grandmother.

13. PW2 did not know who Kevin was but enquired and got to know his home, and got policemen to accompany her to the home. They found the appellant and PW1 in the same house at 9;00pm and they were arrested.

14. PW3 of Got Jope Police Post recalled that on May 16, 2021, PW2 reported to the post that her daughter had been missing from May 7, 2021 and she knew where to find her. She led them to a house where they found both the complainant (PW1) and the appellant almost naked and that PW1 claimed to have been married to the appellant.

15. PW4 was the investigating officer in this matter. She received PW1’s birth certificate from PW2 and learnt that the complainant had been staying with the appellant and he had defiled her. Police escorted PW1 and the appellant to Migori Referral Hospital where they were examined.

16. PW5 examined PW1 on May 17, 2021 for alleged defilement. He did not find any lacerations in the genitalia, the hymen was broken and there was fresh bleeding from cervical opening as she was in her periods;

17. When called upon to defend herself, the appellant opted to give unsworn statement in which he denied having been found with the complainant but that he had met her at a bar on another date.

18. I have considered, the grounds of appeal evidence on record and submissions filed.

19. The appellant alleged that article 50 (2) (g) and (h) were violated by the court. Article 50 of the Constitution guarantees an accused person’s right to fair hearing at trial. Article 50 (2) (g) and (h) provides as follows:-50(2)Every accused person has the right to a fair trial, which includes the right-(g)to choose, and be represented by an advocate, and to be informed of this right promptly.(h)to have an advocate assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of his right promptly.

20. Under sub article 2(g), the court is duty bound to inform the accused person of his right to counsel. That right cannot be derogated by dint of article 25 of the Constitution. It is important that accused be informed of his right so that he can make an informed decision in good time whether or not to procure services of counsel. If he cannot be able to afford counsel, he may seek assistance from the legal aid committee for legal aid. The provision also requires that the right be explained to an accused promptly, preferably before plea or soon thereafter. The court considered the said provision in Chacha Mwita v Republic CRA 33/2019 ( Migori) where the court said:-“Courts have dealt with the need to avail such information to an accused person to enable him/her make a choice on legal representation. In Pett v Greyhound Racing Association (1968) 2 All ER 545 Lord Denning presented himself thus: -It is not every man who has the ability to represent himself on his own. He cannot bring out the point in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A magistrate says to a man; ‘you can ask any questions you like;’ whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him and who better than a lawyer who has trained for the task.In South Africa in Fraser v ABSA Bank Limited (66/05) (2006) ZACC 24; 2007 (3) SA 484 (CC); 2007 (3) BCLR 219 (CC) the constitutional court had the following to say: -Without the recognition of the right to legal representation in section 26(6), the scheme of restraint embodied in POCA might well have been unconstitutional. However, the right embodied in section 35(3)(f) of the Constitution does not mean that an accused is entitled to the legal services of any counsel he or she chooses, regardless of his or her financial situation….In Kenya, the Supreme Court in Petition No 5 of 2015 Republic v Karisa Chengo & 2 others [2017] eKLR while dealing with various aspects of the right to a fair hearing under article 50 of the Constitution stated as follows: -the right to legal representation…...under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more.

21. In the instant case, the proceedings clearly indicate that on May 18, 2021, when the appellant was arraigned before the court, the court took time to explain article 50 (2) (g) to him. He said that he will represent himself. The said right was therefore not violated.

22. The appellant also complained that there were contradictions in the prosecution evidence. Courts have pronounced themselves severally on how the court should deal with contradictions and discrepancies in evidence. In Erick Onyango Ondeng v Republic(2014) eKLR the Court of Appeal quoted with approval the holding by the Ugandan Court of Appeal in Twahengane Alfred v Uganda Court AR 139/2001 (2003 UG CA 6). Where the court said in regards to contradictions in prosecution’s case“With regard to contradictions in the prosecution case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution case.”

23. See also Dickson Elia Nsamba Shapwata &another v Republic Criminal Appeal No 92 of 2007 Court of Appeal of Tanzania.

24. In the instant case, the appellant complained that it was not clear when the offence was committed because the complainant just talked of July 2021 then later alleged that it was in May 2021. PW1 however, clarified that the incident was in May 2021.

25. PW2 confirmed that PW1 left home on May 7, 2021 and was found May 16, 2021. PW5 examined the complainant and appellant on May 17, 2021. I find the discrepancy in the evidence to have been very minor. It did not go to the root of the charge and in any event, it was corrected by PW1.

26. The appellant faced a charge of defilement. The onus rested on the prosecution to prove its case beyond reasonable doubt.

27. To prove on offence of defilement, the prosecution had a duty to establish that the following ingredients exist1. The age of the complainant;2. Proof of penetration;3. Proof of identity of the perpetrator.

Age 28. The age of the complainant is not in doubt. PW2 produced the complainant’s birth certificate. She was born on May 15, 2005 and was therefore 16 years of age as of May 7, 2022 when the offence was allegedly committed. She was a minor.

29. The appellant urged that the court should enquire whether the complainant consented to the alleged act. In an offence of defilement, the child has no capacity to consent to an act of defilement. Even if the child consented, the offence is still committed.

30. There is sufficient evidence to prove that the complainant was a minor.

31. Whether there was penetration, the complainant vividly explained to the court what transpired between her and the appellant. Penetration is defined under section 2 of the Sexual Offences Act as:-Means the partial or complete insertion of the genital organs if a person into the genital organ of another person.”

32. They shared a bed, had sexual intercourse and that the appellant used a condom. From the complainants conduct, the court is satisfied that she knew what sexual intercourse is. The appellant never challenged that evidence. Even though PW5 did not find any evidence of on the genitalia or when the hymen was broken, he told the court that PW1 was in her periods. It is immaterial that no injuries were found.

33. The appellant alleged in his submissions that the complainant must have been having sexual intercourse with other men but that is immaterial for this case. Those other people are not on trial because they have not been arrested and charged. The issue is whether the appellant defiled the complainant.

34. The complainant told the court that she had met the appellant earlier and they were girlfriend and boyfriend and that in fact they had gotten married. PW2 and PW3 confirmed that they found them on the appellant’s house on the night of May 16, 2021, over a week since PW1 had disappeared from home.

35. On whether there was need for medical evidence to prove the charge of defilement, courts have said over and over that medical evidence is not necessary to prove an offence of defilement.

36. In AML v Republic(2012) eKLR the court stated :-It was submitted that there was no medical evidence to connect the appellant with the offence as no DNA test was conducted. The position of the law is that the offense of rape and defilement are proved by way of oral evidence and circumstantial evidence and not necessarily by medical evidence”.

37. In Kassim Ali v Republic the court said:-… .absence of medical examination to support the fact of rape is not decessive as the fact of rape can be proved by oral evidence of a victim of rape or circumstantial evidence.”See also Bassita v Uganda S C Criminal Appeal No 35 of 1995.

38. The complainant and appellant had been staying together as husband and wife and engaged in sexual intercourse. I am satisfied that penetration was proved.

39. I find that the appellants denial is but hollow. He was caught red-handed with PW1 in his house. He had spent several days with PW1. PW1 was a child ie a student for that matter. There is no reason why PW1 would have framed the appellant.

40. I am satisfied that the trial court arrived at the proper decision that the appellant defiled PW2 and I affirm the conviction.

41. The appellant was sentenced to twenty (20) years imprisonment under section 8 (4) of Sexual Offences Act. Upon conviction, under section 8(4) Sexual Offences Act, one is liable to a sentence of not less than 15 years imprisonment. No doubt the appellant took advantage of the complainant. I have considered the circumstances of the case, and the conduct of the complainant, a young girl of 16 years taking herself to a bar without shame and taking changaa, I found the sentence though lawful, was on the higher side. In the exercise of this court’s discretion, having taken into account the circumstances of this case and the conduct of the complainant, I hereby set aside the sentence of 20 years, imprisonment instead substitute and with 10 years imprisonment. The appeal succeeds to that extent. The sentence will commence on the date the appellant was sentenced on March 8, 2022 .

DELIVERED, DATED AND SIGNED AT MIGORI THIS 15 TH DAY OF DECEMBER, 2022. R. WENDOHJUDGEJudgment delivered in the presence ofMr. Maatwa, for the State.Appellant present in person.Evelyne Nyauke – Court Assistant