Bernard Kipyegon Kirui v Republic [2017] KEHC 674 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BOMET

CRIMINAL APPEAL NO. 1  OF 2017

BERNARD KIPYEGON KIRUI.......................APPELLANT

-VERSUS-

REPUBLIC....................................................RESPONDENT

(Being an appeal from the original conviction and sentence in

criminal case No. 5 of 2015 PMs Court Sotik – Hon Barasa -SRM)

JUDGMENT

The appellant was convicted and sentenced to 10 years imprisonment  for the offence of indecent act with a child Contrary to Section  11 (1) of the Sexual Offences  Act.

The particulars being that on the 16th day of January 2015 at [particulars withheld]  within Bomet County, intentionally and unlawfully touched the buttocks , breasts and vagina of M C a child aged ten years.

The prosecution in this case called six witnesses in support of its case.  The appellant gave a sworn statement.

This is the first appellate court.  It has a duty to re-evaluate and re-consider the evidence on record so as to arrive at its own conclusions bearing in mind that it did not have the opportunity to observe the demeanor of the witnesses.

Brief facts

The appellant is said to have been operating a posho mill belonging to his family.  On the 16th day of January 2015 the complainant was send by her mother to grind maize.  It is the evidence of the complainant that the appellant pulled her into another room behind the posho mill tore her short, removed his trousers and did bad things to her.  She later went and reported to her mother of what the appellant did to her.

PW5 did  examine the complainant on a history of defilement. There were no bruises on the labia majora.  There was whitish discharge.  Pus cells were seen Spermatozoa was also seen but there were  no signs of penetration.  The clinical officer informed the court that he examined the child on 17th January 2015.  The offence as per the charge sheet is said to have been committed on 16/1/2015.  In the same breadth he testified to have examined the child one week later.  The learned trial magistrate did note that there were discrepancies in the medical documents which was a pointer of the possibility  that PW5 did not examine the complainant as noted by the defence  counsel.

In the last page of his judgment, 2nd paragraph he did observe “in view of these inconsistencies in the medical evidence and notwithstanding the conclusion of PW5 that there were some signs of penetration, this court finds it not safe to convict the accused  on the first court of defilement having fallen short of proving the ingredient of penetration”.

I have perused the P3 form.  If the clinical officer examined the complainant after a week   there was no way he could find presence of spermatozoa.  In his evidence he did testify that there was no penetration yet in the P3 form there are alterations which read “there were signs of penetration.  The cancellations are not signed.  This goes to show that there were attempts to fix the appellant in this case of defilement.  The appellant however, was not found guilty of the offence of defilement but in the alternative count of indecency with a child Contrary to Section  11(1) of the Sexual Offence Act.

Section 2 of the Sexual Offence Act defines an indecent act thus;- An act which causes:-

(a) Any contact between any part of the body of a person with the genital organs, breasts or buttocks of another but does not include an act that causes penetration.

Having found that there were deliberate attempts to alter evidence in favour of the prosecution, which attempts were prejudicial to the case  for the defence it would only be fair that the court not be seen to encourage such acts and resolve the case in favour of the appellant.  Appeal allowed.

I find  the conviction on the alternative count was not safe.  The conviction is quashed and the sentence is set aside.  The accused is set at liberty unless otherwise lawfully held.

Judgement delivered dated and signed this 14th day of November 2017 in the present of learned counsel for the prosecution Mr. Nabuyumbu learned counsel for the defence Mr. Kenduiwa holding brief Koech

Court assistant Mr. Rotich.

M. MUYA

JUDGE

14/11/17