Gibson Makini Onyambu v Republic [2017] KEHC 1531 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

CRIMINAL APPEAL NO. 14 OF 2016

[From the original conviction and sentence in Criminal Case

No. 619 of 2014 in the Chief Magistrate’s Court  at Narok, R. v. Gibson Makini Onyambu]

GIBSON MAKINI ONYAMBU...........................APPELLANT

VERSUS

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

JUDGEMENT

1. The appellant has appealed against his conviction and sentence of 20 years imprisonment in respect of the offence of defilement contrary to section 8(1) (3) of Sexual Offences Act No. 3 of 2006.

2. The state has supported both the conviction and sentence.

3. The appellant was convicted on the evidence of the complainant (PW 1). The complainant was a student of the appellant at [particulars withheld] Boarding primary school.  The defence of the appellant was that he was framed.

4. The appellant has raised 14 grounds in support of his amended  petition of appeal to this court.  In ground 1, he has stated the unchallengeable fact that he did not plead guilty.

5. In ground 2, he has faulted the trial court for convicting him on contradictory and incredible evidence.  Additionally, he has faulted the trial for convicting him for this offence when the age of the complainant in the birth certificate was different from the one charged in the charge sheet.  In this regard, the evidence of the complainant is that the appellant had sexual intercourse with her on diverse dates between December 2013  to 19/4/2014. The complainant testified that she knew the appellant as her school teacher. At times, the complainant used to visit the house of the appellant.  According to  her, they played sex once in  December at 12. 00 noon.  It was also her testimony that the appellant warned her not to tell anyone about it because it might lead to the loss of his  job.  She also testified that in April 2014, the complainant met the appellant  and at that point in time the appellant gave her his jacket to wear.  She then proceeded to the house of the appellant.  It is on that day that 3 elders went to the house of the appellant in search of the complainant.  The elders found the appellant in his house, who told them that the complainant was not there.  The elders were not satisfied and as  a result, they searched the house  and found her there.  These elders proceeded to arrest both the complainant and the appellant.

6. There  is other evidence from Kisiu Julius Kararei (PW 3),  who saw the complainant going and entering the house of the appellant on 15/4/2014.  When the complainant was asked as to why she went to that house, her response was that she had gone to the washroom in that house. Again on 19/4/2014, PW 3 saw the complainant going into the house of the appellant  with the appellant’s jacket.

7. The complainant was taken for medical examination at Ololulunga District Hospital. She was examined by Samuel Jeno (PW 5),  who was a clinical officer.  According to PW 5, the complainant complained of having been  defiled by her teacher, the appellant.  She also told PW 5 that during the holidays and  in December 2014, they had protected sex.  Additionally, she told PW 5 that on 19/4/2014 while attending a seminar, the appellant took her to his house and thereafter was rescued by 3 church elders.  PW 5 assessed the age of the complainant as being approximately 15 years old.  PW 5 also found that the complainant had a broken hymen.  He also found  no external  injuries or discharge  from her private parts.  Finally, he found that the complainant had no syphilis or HIV.  He concluded that the complainant was a victim of attempted defilement. Thereafter,  he put in evidence the P3 form as exhibit PB1, the treatment notes as exhibit PB2, the age  assessment report as exhibit PB4.  Finally, he put in evidence the treatment notes as exhibit PB3.   The age assessment report indicated that the complainant was below 18 years and the treatment notes indicate that she was  15 years old.

8. The evidence of the complainant  is cogent and consistent that the appellant defiled her.  There is corroboration of her evidence which consists of Kisui Julius Kararei (PW 3) who went to the house of the appellant and found the complainant hiding at the edge of the appellant’s house. When they asked the appellant as to whether he wanted to marry the complainant, his answer was in the negative.  It is these elders who called the police and proceeded to arrest the appellant.  It is important to point out that the sworn evidence of the complainant did not need corroboration as a matter of law according to Kibangeny arap Kolil v. R. (1959) EA 92.  According to the Court of Appeal in that case, no corroboration is required of the sworn evidence of a child of tender years which was envisaged by section 124 of the Evidence Act (Cap 80) Laws of Kenya. The court went further  to state that if the evidence of a child of tender years was unsworn, corroboration of her evidence is necessary.  In the circumstances, I find that the prosecution evidence was  credible, cogent and consistent.

9. In the light of the foregoing evidence I find that the appellant had sexual intercourse with the complainant.  This is clear from her broken hymen in terms of the evidence of the clinical officer PW 5. The submission  by counsel  for the appellant that the complainant’s hymen may have been torn by natural causes or by other men is disproved by the complainant’s evidence and that of the clinical officer.  A court of law according to Oketch Okale v. R. (1965) EA 555 should base its findings on the evidence produced in court and is  not to base its findings on speculation. In the instant appeal, there is tangible evidence from the complainant and the clinical officer that she had had several sexual intercourse with the appellant.  The inference to be drawn from this evidence is that the hymen of the complainant was torn in the course of those sexual intercourse sessions.  The submission of counsel that the hymen may have been torn by natural causes  or  other men runs contrary to this credible evidence.  I therefore find no merit in this submission and is hereby dismissed.

10. The appellant through his counsel has submitted that the age of the complainant was not proved. The evidence of the clinical officer was that the complainant was below 18 years.  The treatment notes indicate that she is 15 years old.  In this regard, the father of the complainant, K S (PW 2) testified that the complainant was 15 years old. The complainant in her voire dire examination testified that she was 15 years old.  The charge sheet alleges that she is 13 years old.  Proof of age is an essential requirement in a charge of defilement.  In this regard, I agree with Mr. Kamwaro that the doctor’s assessment that the complainant was below 18 years  was not  satisfactory.  I also agree with him that the allegation in the charge sheet that the complainant was 13 years old did not constitute the evidence as it was just an allegation.

11. However, I find  from the evidence of the complainant and that of  her father of that  she was 15 years old.  It is true that this case was tried by 2 magistrates.  The trial court that convicted the appellant only took the evidence of APC Wilson Kirui (PW 6) and  Cpl Charles Chamwada (PW 7).  And for that reason the trial court cannot in principle base its decision on the demeanour of the rest of the witnesses whom she never saw and heard  them  testify.  I have considered this submission and I find that although the trial magistrate did not see and hear these witnesses testify before her, I find that there is a ring of truth in their testimony.  They were therefore rightly found to be credible witnesses by the trial court.  In the circumstances, I find no merit in this submission which I hereby dismiss.

12. The appellant through his counsel faulted the trial court in dismissing his alibi defence which was strong and unchallengeable.  In this regard, counsel for the appellant submitted that the appellant had gone to attend vocational training between the month of November and December 2013, a matter in regard to which he produced documentary evidence in form of receipts.  In this regard, I agree with Mr. Kamwaro that  where the appellant raises the defence of alibi for the first time in court, the prosecution have a right to produce evidence in rebuttal.  In this regard, Mr. Kamwaro cited the case of Victor Mwendwa Mulinge v. Republic (2014) eKLR.  In that case, the Court of Appeal expressed itself in that  regard as follows:

“even if the appellant raised the defence of alibi for the first time while in court, pursuant to section 309 of the Criminal Procedure Code, the prosecution could have sought to adduce further evidence in reply to rebut the appellant’s defence”

In this regard, I find that the evidence of the complainant was that she knew the appellant as her teacher.  There is also the evidence of the church elders who saw the complainant going into the house of the appellant.  In answer to this evidence, the appellant testified that he was framed. The trial court considered his defence of alibi and that he was framed  and found it incredible.  I have also considered it and I  find that the alibi defence of the appellant was disproved.  In the circumstances, I find no merit in this submission and hereby reject it.

13. In ground 3, the appellant has faulted the trial court in failing to find that there was no penetration of the female organ by the appellant.  Counsel submitted that the clinical officer after examining the complainant found that this was a case of attempted defilement.  I find from the evidence of the complainant and the clinical officer that there was penetration of the female organ.  I therefore find that this submission is lacking in merit and is hereby dismissed.

14. In ground 4, the appellant has faulted the trial court for failing to find that the complainant did not report the offence to the police station within a reasonable period.  In this regard, counsel cited the case of Elias Kiamati Njeru v. R. (2015) eKLR.  In this regard, the prosecution evidence is that the church elders followed the complainant and the appellant into the appellant’s house. Upon entry, the appellant denied that the complainant was present in that house. After a search, the complainant was found in that house of the appellant.  The appellant and the complainant were then arrested and taken for medical examination.  It is clear from this evidence that this offence would have gone undetected were it not for the intervention of the church elders. It is also clear from this evidence that the appellant remained silent in relation to his friendship with the complainant.  In the circumstances, I find that there is an evidentiary explanation as to the lack of reporting this offence to the police.  In the circumstances, I find that this ground  is lacking in merit and is hereby dismissed.

15. In ground 5,  the appellant  has faulted the trial court for convicting him on fabricated and contradictory evidence.  Counsel has submitted that according to PW 3, the complainant and the appellant were found in the house of the  appellant on 15/4/2014.  In this regard, the evidence of the complainant was that she was found in the house of the appellant  on 19/4/2014. I find from the evidence of  these 2 witnesses that their  evidence is credible.  They had no reason to give false testimony.  I therefore find that the contradiction was not material, and for that reason I find counsel’s submission to be lacking in merit and it hereby dismissed.

16.  In ground 6, the appellant has faulted the trial court in delivering a speculative judgement.  I find from the judgement that the findings of the trial court are based on the evidence that was tendered before it.  In the circumstances, I find that his ground of appeal is lacking in merit and is hereby dismissed.

17. In ground 7, the appellant has faulted the trial court for not warning itself on the credibility of the complainant. I find from the judgement that the trial court found the complainant to be a truthful witness,  whose evidence was supported by that of the Clinical Officer.  In the circumstances, it was not necessary for the trial court to warn itself in respect of the evidence of  the complainant.  It was corroborated by the evidence of the church elders.  I therefore find no merit in this ground of appeal and is hereby dismissed.

18. In ground 8, the appellant has faulted the trial court in finding that the prosecution evidence did not create doubt in their  case. I find from the evidence that the prosecution evidence was cogent, consistent and reliable.  In the circumstances, I find that the offence of defilement was proved beyond reasonable doubt.  I therefore find that this ground of appeal is lacking in merit and is hereby dismissed.

19. The sentence  of 20 years  imprisonment is the minimum authorized by law. And I find it to be proper.

20. The upshot of the foregoing is that this appeal fails and is hereby dismissed in its entirety.

Judgement delivered in open court this 8th day of November, 2017 in the presence of  Mr. Kamwaro for appellant and Ms Nyaroita for respondent.

J. M. Bwonwonga

Judge

8/11/2017