[2023] KEHC 24341 (KLR)

Yaa v Republic (Criminal Appeal E014 of 2022) [2023] KEHC 24341 (KLR) (24 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24341 (KLR)

Republic of Kenya

In the High Court at Malindi

Criminal Appeal E014 of 2022

KW Kiarie, J

October 24, 2023

Between

Tumaini John Yaa

Appellant

and

Republic

Respondent

(From the original conviction and sentence in S.O. case number.40 of 2018 of the Chief Magistrate’s Court at Malindi by Hon. W.K. Chepseba-Chief Magistrate)

Judgment

1. Tumaini John Yaa, the appellant herein, was convicted of the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act No. 3 0f 2006.

2. The particulars of the offence are that on the 3rd day of June 2018 at Malindi sub-County within Kilifi County, intentionally and unlawfully caused his penis to penetrate the vagina of LKK, a child aged 10 years.

3. The appellant was sentenced to life imprisonment.

4. He was aggrieved and filed this appeal against both conviction and sentence. He raised grounds of appeal as follows:a.That the trial court erred in law and fact by failing to see that the witness statements were not made available to him in the trial.b.The trial court failed to conduct a voir dire examination on the complainant.c.The trial court failed to see that the complainant’s age was not proven.d.That the learned trial court magistrate erred in law and facts by taking into consideration extraneous factors in the sentence.e.That the learned trial court magistrate erred in law and facts by failing to consider his mitigation address that he was a first offender and the pre-trial custody period in the sentence.

5. The appeal was opposed by the state through Ngina Mutua, learned counsel. It was contended that all the ingredients of the offence were proved and that the sentence was legal.

6. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs. Republic [1972] EA 32.

7. Though the appellant contended that the trial magistrate failed to conduct a voir dire before the complainant testified, the record indicates that this was done. This ground of appeal is dismissed.

8. Section 8(1) of the Sexual Offences Act defines defilement in the following terms:A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.An offence of defilement, therefore, is established against an accused person when the prosecution has proved the following ingredients:a.That there was penetration of the complainant’s genitalia;b.That the accused was the perpetrator; andc.The age of the complainant was below eighteen years.These ingredients were restated in Fappyton Mutuku Ngui vs. Republic [2012] eKLR as follows:Going by this definition of defilement, I agree with Mr. Mwenda on the issues which the court needs to determine. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant.These are the ingredients that the prosecution must prove against an accused person.

9. A birth certificate that was produced by MH (PW5) indicates that the complainant was born on 3rd July 2007. This therefore means that as of the 3rd day of June, 2017 the complainant was 10 years and 11 months old. The age of the complainant was therefore proved in accordance with the legal requirements.

10. LKK (PW1) the complainant, testified that she was defiled by penetration by use of male genitalia. This was confirmed by the medical evidence adduced by IA (PW4) who produced a P3 form filled by her colleague Y who confirmed that indeed there was defilement. I therefore find that the complainant was defiled.

11. The prosecution gave two versions of the incident. According to the complainant, she was defiled inside an apparently non-operative bar. This was after the appellant had asked other children in her company to go away. However, according to TR (PW2), the incident was inside the house of the appellant. It happened when he was outside with another child. The appellant and the complainant went inside the house. Later on, the complainant went out crying and did not tell him immediately what had happened. He only learned later that she had been defiled.

12. The Court of Appeal in the case of Ndungu Kimanyi vs. Republic [1979] KLR 283 (Madan, Miller and Potter JJA) held:The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.

13. The prosecution did not attempt to reconcile these two contradictory versions. It was therefore unsafe for the court to conclude that the offence was proved against the appellant to the required standards.

14. In her evidence the complainant had placed an adult female at the scene. There was no attempt by the investigating officer to establish her identity and summon her as a witness. The Court of Appeal in the case of Bukenya vs. Uganda [1972] EA 549, (Lutta Ag. Vice President) held:The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.

15. Had this witness been called, she could have probably reconciled the two versions. Failure to call her was fatal to the prosecution case.

16. I accordingly quash the conviction. I set aside the sentence and set the appellant at liberty unless if otherwise lawfully held.

DELIVERED AND SIGNED AT HOMA BAY THIS 24TH DAY OF OCTOBER, 2023. KIARIE WAWERU KIARIEJUDGE