John Chikamai v Republic [2017] KEHC 1077 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

CRIMINAL APPEAL NO. 23 OF 2016

[Being an appeal from the original conviction and sentence in criminal case No. 86 of 2015 dated 6/5/2015

in the Senior Resident Magistrate’s court at Narok, R. v. John Chikamai alias D. J. Bless]

JOHN CHIKAMAI……………………………………………..APPELLANT

VERSUS

REPUBLIC…………………..………………………………..RESPONDENT

JUDGEMENT

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

2. The appellant was convicted mainly on the evidence of  O.K (initials)(PW 1),  who was the  complainant.  She was allowed to give sworn testimony following a successful voire dire examination.  Her evidence is that her friend by the name L told her that there was a show at [particulars withheld] Club and they proceeded there.  Upon arrival in Narok town, they were joined by another mutual friend namely C.  Eventually when they arrived at the club, they found that there was no show.  As a result they decided to return to Narok town.

3. The complainant and L decided to take a boda boda to town which dropped them at [particulars withheld] Hotel. At [particulars withheld]  Hotel, L went away with another boda boda rider, who is not the appellant.  At that point in time, the appellant asked the complainant and L to escort him to his house to collect money.  They went to the house of the appellant, who offered her juice to drink.  The complainant refused to drink the juice but C and L drunk it.  The appellant then offered then liquor to drink.  She refused to drink the liquor while her companion drunk  it after mixing  it with juice.  Apparently, the appellant owed the complainant some money.  In response, the appellant had told her that he had money in his Mpesa account.  The appellant then suggested that they go to an Mpesa point to withdraw the money.  They proceeded to the Mpesa point.  L and C remained behind.

4. Upon arrival at the [particulars withheld] Hotel, the appellant left the complainant at the parking lot and went into the hotel.  He returned back telling the complainant that there was no Mpesa agent with cash.  At the request of  the appellant,  the complainant accompanied  him to his house as a pillion passenger of the appellant.  It is important to point out that the appellant was a boda boda rider.  They then entered the house of the appellant.  As at that time, L and C had left.  The complainant demanded to be paid her money by the appellant.  In response, the appellant told her that a friend of his who had cash was coming.  She therefore agreed to wait.  The testimony of the complainant is that the appellant went over to her and forced her to have sex with him on his bed.  It then began to rain and they had sex the whole night.  The following morning at 7. Am, she was left to go.

5. As she was walking towards  L’s home, she met her mother, MKI (PW 2).  She told her mother what had happened.  They then went to report to Narok Police station.  Eventually, she was taken for a medical examination.

6. Hillary Kiptoo (PW 4) was the clinical officer who examined the complainant.  According to PW 4,  he found the following:

Both her thighs were tender

There were lacerations to the posterior aspects of her female organ

Her hymen was torn

She had blood stains in the walls of her private organ

No spermatozoa was seen

A pregnancy  and HIV test proved negative

He found her to be 15 years old.  He then put in evidence the P3 form as exhibit PEX 1.

The complainant identified her birth certificate which indicated her date of birth as 18/3/1998.

7. The appellant has raised 6 grounds in his amended petition to this court.  In ground 1, the appellant has faulted the trial court in failing to find that the age of the complainant was not proved.  In this regard, the medical evidence of Hillary Kiptoo was that the complainant was aged 15 years old.  The evidence of the complainant is that she was born on 18/3/1998.  It follows that she was 17 years old in 2015 when she testified.  The evidence of her mother (PW 2), was that the complainant was born in March 1998.  In the circumstances, I find that the complainant was born in March 1998.  She was 17 years old by 2015.  I therefore find that her age was proved to be 17 years and not 15 years as found by Hillary Kiptoo (PW 4).  In the circumstances, this ground of appeal is lacking in merit and is hereby dismissed.

8. In ground 2, the appellant has faulted the trial court for finding that there was Penetration  of the vagina  of the complainant by the appellant’s male organ.  In this regard, there is the evidence of the complainant, whose testimony was that she had sexual intercourse the whole night with the appellant.  The evidence of PW 4 showed that there were injuries in the female organ of the complainant.  The said medical evidence also showed bleeding in the vagina of the complainant.  In the circumstances, I find that penetration was proved as required.  It therefore follows that this ground of appeal is lacking in merit and is hereby dismissed.

9. In ground 3, the appellant has faulted the trial court both in law and fact in failing to find that the medical report which were put in evidence were flawed and defective.  In this regard, I find that the medical evidence of Hillary Kiptoo was properly admitted into evidence in particular the P3 form which was produced as exhibit PEX 1. However, the medical treatment notes were rejected as being inadmissible because in the opinion of the  trial court they were suspicious.  And for that reason, the issue of those medical treatment notes is not an issue in this court.  I therefore find that this ground of appeal is lacking in merit and is hereby dismissed.

10. In ground 4, the appellant has faulted the trial court for convicting him on contradictory and uncorroborated evidence which was insufficient to prove the offence charged.  In this regard, the appellant submitted that there was contradiction in the evidence of the complainant and that of her mother in relation to when she left her parents’ home.  The evidence of the complainant is that she left her parents’ home on 18/1/2015.  The evidence of her mother is that the complainant went missing on 18/1/2015.  The mother testified further that the complainant had gone to the home of L in the morning of 19/1/2015.  I therefore do not find that there is a contradiction in the evidence of PW 1 and PW 2. Furthermore, according to the Court of Appeal in Kibangeny Arap Kolil v. R (1959) EA 92, the sworn evidence of a child of tender years does not need corroboration.  In  the instant appeal, the complainant gave sworn evidence following a voire direexamination.  Therefore her evidence did not call for corroboration.   This ground of appeal is lacking in merit and is hereby dismissed.

11. In ground 5, the appellant has faulted the trial court for refusing to accord the opportunity to call his defence witnesses.  In this regard, I refer to the proceedings of 30/3/2016.  After being put on his defence,  the appellant is recorded to have  told the court  that he had no witnesses to call.  It is also recorded that he had elected to make an unsworn statement.  Additionally, it is also recorded in the proceedings of 23/3/2016, that the appellant had wished to  be remanded at Narok Police station so as to enable him call his witnesses.  In response to that request, the court told the appellant that he should utilize the welfare officer at prison to call his witnesses.

12. Furthermore, in his lengthy submission after the conclusion of his evidence, the appellant told the trial court that he had planned to call witnesses but was unable to do so because he had lost their contact. He concluded his submission by asking the court to give him a fair treatment.  In the circumstances, I find that the appellant had originally intended to call witnesses for his defence.  In the end, he was unable to call them because he had lost their contact.  In the circumstances, I find that the appellant was not denied the opportunity to call witnesses.  This ground of appeal is lacking in merit and I hereby dismiss it.

13. In ground 6, the appellant has faulted the trial court for disbelieving and rejecting his defence of alibi.  In this regard, I find that the appellant was with the complainant in the afternoon of the material date.  She was also with him the whole night and he set her free the following morning at 7. 00 a.m.  I find the evidence of  the complainant that she positively identified the appellant  as a person who defiled her.  In the circumstances, the alibi defence of the appellant and that he was framed was considered and rightly rejected.  This ground of appeal is lacking in merit and is hereby dismissed. C and L should have been called as witnesses.  I am unable to state that failure to call them prejudiced the case against the appellant.

14. This is a first appeal.  As a first appeal court, according to Okeno v. R. (1972) EA 32, I am required to reassess the evidence upon which the conviction was based.  I have done so and I find that the appellant was convicted on sound evidence.

15. The sentence of 15 years imprisonment imposed upon the appellant is one that is authorized by law.

16. The upshot of the foregoing is that the appellant’s appeal is hereby dismissed in its entirety.

Judgement delivered in open court this 7th day of November, 2017 in the presence of   the appellant and Ms Nyaroita for the respondent.

J. M. Bwonwonga

Judge

7/11/2017