M K v Republic [2017] KEHC 1564 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

HCRA  NO. 107 OF 2017

M K...................................................APPELLANT

-VERSUS-

REPUBLIC..................................PROSECUTION

JUDGEMENT

INTRODUCTION

1. The Appellant was charged with offence of:-

COUNT I: DEFILEMENT CONTRARY TO SECTION 8(1) (2) OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006.

Particulars being that on the 14th day of February 2013 within Makueni County intentionally and unlawfully caused his male organ namely penis to penetrate the vagina of N M a girl aged six (6) years.

ALTERNATIVE CHARGE WAS: COMMITTING AN INDECENT ACT WITH A GIRL CHILD CONTRARY TO SECTION II (1) OF THE SEXUAL OFFENCE.

Particulars being that on the 14th day of February 2013 within Makueni County, intentionally and unlawfully touched the vagina of N M a girl aged six (6) years with his penis.

COUNT II: DEFILEMENT CONTRARY TO SECTION 8(1) (2) OF THE SEXUAL OFFENCES ACT NO. 3 OF 2006.

Particulars being that on the 10th day of February in Mukaa District within Makueni County, intentionally and unlawfully caused his male organ namely penis to penetrate the vagina of M D a girl aged ten (10) years.

ALTERNATIVELY, COMMITTING AN INDECENT ACT WITH A CHILD CONTRARY TO SECTION II (1) OF THE SEXUAL OFFENCES ACT NO.5 OF 2006.

Particulars being that on the 10th day of February 2013 in Mukaa District within Makueni County, intentionally and unlawfully touched the vagina of M D a girl aged ten(10) years with his penis.

2. He pleaded not guilty and the matter went into trial.  The Appellant was convicted of main counts and sentenced to life imprisonment on both counts and to run concurrently.

3. Being aggrieved by the above decision, the Appellant lodged his appeal via petition dated 11/05/2015 and attached to it a memorandum setting out 5 grounds of appeal namely:-

a)Thatthe trial magistrate erred in law and facts by failing to solve that the sentence is hash against weight of adduced evidence in support of the charge.

b)Thatthe prosecution had failed to prove its case to the standard required in law.

c)Thatthe trial magistrate erred in law and facts by failing to appreciate that the victim was examine and no DNA test made to confirm the prosecution evidence thus doubtful.

d)Thatthe mode of the delivery of the trial court judgement contravened Section. 169 (1) of the C.P.C and was incurable under section 382 of the CPC.

e)ThatI beg this honourable court to avail me in court during the hearing of this appeal so that I may add more grounds appeal.

4. During the hearing, the Appellant presented amended grounds of appeal and submissions.  In his amended grounds, the Appellant set out five grounds namely:-

a)THATthe learned trial magistrate erred in matters of law and fact by failing to find that PW2’S first impression varied with her subsequent claims; implying that the defilement allegation was an afterthought.

b)THATthe learned trial magistrate erred in matters of law and fact by not finding that PW2 was an incredible witness; whose testimony ought to have borne no probative value.

c)THATthe learned trial magistrate erred in matters of law and fact by not finding that the respective ages of the two complainants were not ascertained to the requisite threshold.

d)THATthe learned trail magistrate erred in matters of law and fact by not finding that the penile penetration of the two complainant’s genitalia was not ascertained to the requisite threshold.

e)THATthe learned trial magistrate erred in matters of law and fact by not being guided by common discernment to deduce that the case against me was framed.

5. The appeal was canvassed by Appellant with submissions and assistant director of the prosecution oral response.

6. This being the first appellate court, it is enjoined to look at the evidence before the trial court afresh, re-evaluate and examine the same and reach its own conclusion whether or not to uphold the conviction of the appellant.

7.  In reaching its decision, this court has to bear in mind the fact that it did not have an opportunity of seeing the witness as they testified and therefore is not expected to make any findings as to the demeanor of the said witness.

8. Finally this court is expected and mandated to consider the grounds of appeal put forward by the Appellant in reaching its judgement. See KINYANJUI –VS- REPUBLIC [2004]2KLR P. 364.

EVIDENCE

9. The prosecution called five witnesses to close its case.  PW1 A M K who testified that on 14/02/2013 at 3. 00 p.m., she was at work and came home and found her child N limping.  She asked her what happened and she refused to reply but instead cried.

10. She then picked her up and placed her on the bed and checked her private parts and found that she had been raped since sperms were oozing out of her vagina.  She asked her who had done that to her and she started to cry and she thus sweet talked her and she said that it was a child from [particulars withheld] Primary School.

11. She took her to the police and at the police she said that it was M who had done that.  She informed them that she came home from school and M found her changing from her uniform to home clothes and defiled her and told her that if she was asked she should say that it was a child from [particulars withheld] who had done that and he promised to give her twenty bob.

12. It was PW1 testimony that they were referred to hospital and the child was examined and thereafter returned home.

13. She indicated that when she got home she asked M who also told her that she had been assaulted and had been told not to tell her and was promised a mango.  She thus took her to Sultan Hamud for treatment and then reported to the police.  She was issued with P3 forms that were duly filled.

14. She informed the court that both children were her daughters and stated that they both informed her that the accused person was the assailant.  She identified the accused person and stated that they used to live in the same house as he was a tentative husband as he had promised to marry her.

15. Upon cross examination the witness stated that they were together when they took the children to the police station.

16. PW2 was the minor N M who upon the court conducting voire dire examination opined that she gives an unsworn testimony.  She identified the accused person as M and stated that he came to the house and had sex with her.  She explained that he removed her panty and he also removed his panty.

17. PW3 was M D who gave a sworn statement upon the court conducting a voire dire examination.

18. She testified that on 10/02/2013 at 3. 00 p.m., she was at school and went home.  She stated that there was nobody at home and M came home and defiled her.

19. She indicated that he removed her skirt and her biker and he then opened his zip and laid her on the bed and had sex with her.  It was her testimony that he then went and bought her a mango.

20. She informed the court that she later told her mother what had happened and she was taken to Sultan Hamud Hospital and then to Sultan Hamud Police Station.  She identified the accused person before the court as the person who defiled her.

21. Upon cross examination the minor stated that she had not been told by her mother what to say in court.  She indicated that the accused had never done that to her before.  She stated that the accused person had laid her on her mother’s bed.

22. PW4 was the investigating officer Sergeant Irene Wambua attached at Sultan Hamud Police Station.  She testified that on 14/02/2013 at 8. 50 p.m. she was in the office when she received a report from a man and a woman and a girl aged 6 years named N M who had been defiled by a person known to her.

23. She thus recorded the report on the occurrence book and referred them to hospital.

24. On 18/02/2013 they came for the P3 form.  The sister of the minor one M D aged 10 years also alleged that she had been defiled but had not told her mother.

25. It was the investigating officer’s testimony that she recorded the said report and referred her to hospital and issued her with a P3 form.  She then recorded the statements and the same implicated the accused one M K.  She thus arrested the accused and charged him with the offence before the court.

26 Upon cross examination the investigating officer stated that the accused person had threatened the complainants.  She stated that the children could not speak in the presence of the accused person because they were scared.

27. PW5 was Dr. Hannington Mibei attached at Makindu District Hospital who testified that on 18/02/2013 he filled the P3 form for N M.  He assessed the age of the injury as 3 days.  The minor had lacerations on the labia and had whitish discharge.

28. The test for HIV was negative, high vaginal swab had pus cells and the urine also had pus cells a sign of infection.  He classified the degree of injury as harm.

29. He produced the P3 form as Exhibit No. 1.  On the same date he also filled the P3 form for M D.  The age of injury was one week.  She had a torn hymen.

30. HIV test was negative and the urine had pus cells.  He classified the degree of injury as harm.  He produced the P3 form as Exhibit No. 2.

31. Upon cross examination the doctor stated that he established that the complainants had been defiled.  He indicated that he did not know if the accused person had gonorrhea because he did not examine him.

32. The prosecution closed its case and the accused was put to his defence whereby he opted to give an unsworn statement.

33. He informed the court that on 19/02/2013 he woke up as usual and started working and while at work he received a phone call from a private number and he was asked where he was and he stated that he was at work.

34. He thus continued with his work until 12. 00 p.m. when he finished work.  It was his testimony that while at home he heard a knock on the gate and went and found two men who told him that he was needed at Sultan Hamud Police Station.

35. He asked them to allow him to lock the house and take the keys to his boss and they agreed.  He informed his boss and then later left for the police station.  They got there and he was locked in after being interrogated by a police woman.  He was later informed of the charges and he asked to be taken to hospital so that they could confirm if he had committed the offence.

36. He was not taken to hospital and on the next day he was taken to court and charged with the offence before the court that he does not know.  It was his testimony that he asked the police to take him to the OCS so that they could take him to hospital.

37. On 21/02/2013 he was taken to hospital and found to be suffering from “kisonono” and he thus opined that if he had committed the offence he ought to have spread the STD to the complainants.  He was told that it was possible but the complainants had not caught the STD when examined.

38. The accused person informed the court that he used to live with the witness and in November 2012 they disagreed because he learnt that she was cheating on him.

39. He therefore told her that it was best that they separate and when he told her that she told him that she will put him in a place that him or his family cannot get him out of and thus when he was arrested he learnt what she meant.

SUBMISSIONS

40. The Appellant submits that the element of offence charged of defilement are:-

i.Penetration of complainant’s genitalia.

ii.The complainant’s age.

iii.Positive identification of the accused as the perpetrator.

41. He relies on PAPPYTON MUTUKU NGUI –VS- REPUBLIC CRA 296/2010.  He further submits that the prove must be beyond reasonable doubt and relies on DPP –VS- WOOLMINGTON (1935) UKHL.

42. He submits that the prosecution failed to prove all the above elements of offence charged beyond reasonable doubt.

On GROUND 1 (ONE): the appellant submits that;PW1 testified at pg. 9 lines 7- 9 thus: “I saw sperms oozing out of her vagina.  I asked her who did it.  She started to cry.  I sweet talked her.  Then she said first that she was assaulted by a child from [particulars withheld] Primary School.”  However, she subsequently changed her story to implicate him.  Why had she initially said that she was defiled by a fellow student?  Is it not clear that there must have been some external influence that made her to change her story?

ON GROUND 2 (TWO):the appellant submits that;PW2 is said to have narrated to her mother what had happened to her before changing her story for whatever reason and giving a detailed account implicating him.

On voir dire, she was declared (rightly so) not intelligent enough to give a sworn testimony.  If PW1 was truthful as to what PW2 reported to her, why could PW2 not be able to re-narrate that story before court.  It is significant to note that PW2was so confused as to be stood down by the court.

It is implicit that PW2 tried to testify as directed by her mother, but because of her tender age, she could not reproduce the exact words dictated on her.

Therefore she failed. PW2 was stood down and never testified again?  Can the conviction be said to have been safe and free from error?

43. ON GROUND 3 (THREE): the appellant submits that the proof of age is one of the key elements which must be proved (albeit beyond reasonable doubt).  He relies  on the case of Hilary Nyongesa –Vs- Republic, (Eldoret Cr. Appeal No. 123 of 2009).where court  Held:

“Age is a critical aspect in sexual offences that it has to be conclusively proved……..And this becomes more important because punishment (sentence) under sexual offences Act is determined by the age of the victim”.

The Appellant contends that,Sexual Offences Act promulgated some rules towards the achievement of its objectives.  Those roles came to be known as “The Sexual Offence Act(Rules of Court) 2014 which come into force on 11/07/2014 under Legal Notice No. 101.

Under Rule 4 thereof, the age of the complainant may be determined by way of a Birth Certificate, any school documents, a Baptismal Card or any other similar document.  The significance of documentary evidence to prove age cannot thus be undermined.

It beats logic that none of the prosecution witnesses testified as to their respective ages.

To supplement or substitute documentary (whenever circumstances so permit), the jurisprudence has held that the age of the complainant can be ascertained by documentary evidence, oral testimonies or by professional age assessment.

The intrinsic becomes more pertinent in the present matter since the sentence prescribed by law under Section 8 (1), (2) is a life sentence.  It is the life of an individual at stake here and the slightest understatement concerning the age of the complainant may define the difference between a fixed custodial sentence and a life sentence with the implication that the convict shall never leave prison for the rest of their life.

It cannot therefore be plausibly asserted that the complainant’s age was conclusively proved.  It would constitute latent injustice to the accused person if proof of age would be held satisfied without words of mouth as a substitution for the orthodox documentary evidence i.e. birth certificate e.t.c. or an explicit age assessment report.

This is because the police with knowledge of the provisions of the Sexual Offences Act may collude with the prosecution witnesses to conceal the actual age and understate it, with an intention of securing the most severe sentence possible.

There are adverse authorities to that regard, (see for example in PHILIP MAINGI MUEKE –VS- REPUBLIC [2015] EKLR); KIMARU J. Held. “This court agrees with the Appellant that it is imperative that the prosecution establishes the age of the complainant in defilement case with the best possible evidence which is a birth certificate, birth notification, an immunization card or in some instances a baptismal card issued shortly after the birth of the child.

However, where this best evidence is not available, the prosecution can rely on other documentary evidence such as the medical report and the P3 form.

The prosecution can also rely on the testimony of the parents of the complainant and also by the court visually satisfying itself as to the apparent age of the complainant.

This position was upheld by the Court of Appeal in Nyeri C.A. Criminal Appeal No. 61 of 2014 Richard WahomeChege –Vs- Republic (unreported) and Nyeri C.A. Criminal Appeal No. 100 of 2013 J.W.A –Vs- Republic (unreported).

In the present appeal, this court holds that the prosecution established the complainant’s age through the testimony of her parents and the P3 form and the medical report produced by the two doctors.

Both parents testified that the complainant was a Standard 5 pupil aged nine (9) years old at the time.  This court has no reason to doubt the assertion by the parents of the complainant.

However, those cases must not be seen as lessening the burden on the prosecution to conclusively prove age.  They simply articulate alternative methods of proving age.  In all those cases there was compelling alternative evidence on age.  Nevertheless, this trial as contested (supra) constitutes latent injustice.

The appellant particularly takes issue with the reliance on medical reports to prove age.  It is his submission that unless it is in record that age assessment was part of the medical examination carried out on the complainant, over reliance on such evidence is prejudicial to him since it dilutes the burden of proof on the prosecution.

In support of my argument, he relies on FRANCIS NDUNGU TWENI –VS- REPUBLIC [2011] EKLR Held:

“In his submissions, the appellant submitted that the evidence on record did not establish the age of the complainant.  The complainant was a child and the court appreciated that fact and took her through a voire dire examination to ascertain whether or not she understood the meaning of oath and was intelligent enough to understand the proceedings.

Thereafter, the court affirmed her.  The complainant’s mother, PW2 testified that the complainant was born in 2002 and that the birth certificate had been destroyed during the 2007 post elections violence.

PW4, the clinical officer who examined the complainant also estimated her age at 9 years.  I am satisfied that the age of the complainant was estimated at 9 years.  It is not only a birth certificate that can prove the age of a person and an explanation was given as to why there were no documents in relation to the complainant’s birth”. (Emphasis added).

A careful scrutiny of those facts reveals that the court did not simply admit the mother’s word of mouth.  In absence of the best possible evidence, which would have been a birth certificate, birth notification, an immunization card or in some instances a baptismal card issued shortly after the birth of the child, the parent’s word of mouth should be reinforced by professional age assessment.

In the above case, a reasonable explanation was also offered as to why the documents could not be availed.  This indicates that both the prosecution and the court directed their minds seriously to the issue of prove of age.

The appellant submits that in the present matter, the question of age was not accorded proper attention, not by the prosecution nor the court, thusevidence lacking statutory backup and hence unsafe to rely on it.

ON GROUND 4 (FOUR): the appellant submits that; penetration of the complainant’s genitalia has been held paramount to the success of a defilement charge.  See in EE –VS- REPUBLIC [2015] EKLR, the court observed that:

“An important ingredient of the offence of defilement is that there must have been penetration. Penetration is defined in section 2 of the sexual offences act as ‘Penetration’ means the partial or complete insertion of the genital organ of a person in the genital organ of another person.  The penetration or act of sexual intercourse has therefore to be proved to sustain a charge of defilement.

InBASSITA HUSSEIN – VS- UGANDA, SUPREME COURT CRIMINAL APPEAL NO. 35 OF 1995, the court stated,

“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence.  Usually the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.”

On PW2, no evidence was tendered to the effect that her hymen was missing e.t.c. there was clearly no direct evidence of penile penetration.

On PW3, it is submitted that absence of the hymen was not automatically conclusive of penile penetration under the individual circumstances of the matter.  Suffice to assert that the testimonies of the two complainants were convoluted and not free from error or malicious intent. Indeed the evidence of PW3 was subsequent and was clearly procured as an afterthought.  The medical examination report thus provided no linkage with the offence charged.

44. ON GROUND 5 (FIVE): the appellant submits that; an impartial consideration of the facts would reveal that family disputes between him and PW1 had fueled the allegations.

45. PW2’s subsequent testimony varied with her initial claim in light of his defence statement where he alleged bad blood between himself and PW1 who was clearly the source of those allegations.

Further he contends that, the fact that he accompanied PW1 while taking the complainants to hospital and to report to the police shows that at that time there was no animosity.  So when were the tables overturned against him?

Clearly PW1 had a hand in all this by subverting the minds of the children from their original complainants into a variant story implicating him.

46. Mr. Orinda the Assistant Director Public Prosecution rejoinder is that the prosecution gave cogent evidence. There is no variation between the content of charge sheet and the evidence tendered.

47. The person charged was known by the witnesses PW1, 2 and 3. He was cohabiting with PW1 together with her children PW 2and 3.

48. PW5 medical doctor evidence established there was penetration. The appellant defence was alleged grudge with PW1 who was his lover. He said he abandoned her for being untruthful.

49. On balance of credibility, the prosecution case is more favorable.

50. The totality of prosecution case showed that appellant accompanied PW 1 to the police station to report the incident. This shattered his defence that he had separated with PW1. He took advance of the victims who were calling him dad by giving them gifts.

51. He advised them to say they were defiled at school. He defiled two young children. The witnesses were credible and honest. This court cannot impeach trial court observation and reliance on demeanor of the witness. The P3 form showed the children’s age.

52. The Assistant DPP invited court to peruse file and decide on whether on failure to recall PW 2 who was stood down had impact on the verdict herein. The sentence was lawful as required by law.

53. After going through the evidence on record, and the parties’ submission, I find the issues are:-

1. Whether PW2 evidence lessened its probative value in view of her age and having not completed her testimony or cross examined?

2. Whether the age of the two complainants was proved beyond reasonable doubt?

3. Whether penile penetration to complainants’ genitalia was proved beyond reasonable doubt?

54. The record shows that on 12/08/2013, PW2 N D was put on witness box and the only words in what is purported to be voire dire was what she said namely “I know the bible.”

55. Then on that note the trial magistrate concluded that she was not intelligent enough to know the nature of oath and thus directed that she adduces unsworn evidence.

56. She then testified that she goes to school in [particulars withheld] Primary School where she was in class one.  She remembered that on 11/02/2013, the appellant M went to their home and had sex with her.  He removed her panty and his.

57. On this note the prosecutor sought to have her stood down as she seemed not to be ready.  The court stood her down and adjourned the matter.

58. She was never called again to testify.  The trial court considered PW2 evidence in determination of its verdict.  This conduct of the proceedings deprived the appellant the right to cross examine or even get her whole story including affirming or otherwise her mother’s PW1 testimony on her incident.

59. Failure to give appellant right to cross examine her breached his right fair to trial under Article 50 Constitution of Kenya as pertains to the charge in which she  is the complainant.

60. On the issue of the age of the victims the same is noted as estimate in P3 forms as 6years  and 10 years for PW2 and PW3 respectively.

61. PW2 did not state her age nor her mother PW1 never stated PW2 age. It is noted in P3 form as 6 years.  As pertains to PW3, she stated her age to be 12 years in 2013 same year of the incident.  The mother PW1 did not mention her (PW3) age.

62. The P3 contains estimate being stated as 10 years.  It could be true she ranged between 10 to 12 years.  She was in class 4.  She gave sworn evidence after conducting of voire dire.

63. In the case of HILLARY NYONGESA –VS- REPUBLIC ELD HCRA 123/2009Mwilu – Judge held that age is critical aspect in a sexual offence. That it has to be conclusively proved …………………………. and thus becomes more important because punishment (sentence) under sexual offences Act is determined by the age of the victim.”

64. The sexual offence rules (Rule of Court) 2014 under L N 101/2014 RULE 4 stipulate that the age of the complainant may be determined by way of a Birth Certificate, any school document, a baptismal card or any other similar document.

65. PHILIP MAINGI MUEKE –VS- REPUBLIC (2015) eKLRCourt  “……..the prosecution can rely on other documentary evidence such as the medical report and the P3 form …..” see also FRANCIS NDUNGU TWENI –VS- REPUBLIC 2011 eKLR.

66. As for PW2 the P3 evidence on age was not contradicted but PW3 evidence on P3 was contradicted by her testimony. Mother PW1 did not shed light on the children’s age.

67. The court will thus take PW2 as to be an estimate of 6 years and that of PW3 age of 12 years (i.e. on the higher side and in line with her testimony.

68. On issue as to whether there was prove of penetration of the genitalia, the court observes PW2 evidence was not tested in cross examination.

69. Her mother’s testimony was on what was allegedly reported to her by PW2. PW5 noted PW2 had lacerations on the labia and whitish discharge that proved penetration.

70. As pertains to PW3 the same PW5 observed that PW3 had injuries and torn hymen. This established the penile penetration of the genitalia.

71. The P3 forms were produced as PEX 1 and 2.  The evidence of PW2 and PW3 plus P3 forms evidence established penile penetration was done to their genitalia.  It was corroborated by PW5 evidence and the P3 forms.

72. The case of E.E –VS- REPUBLIC (2015) eKLR reiterated the meaning of penetration as set out in Section 2 of the Sexual Offence Act. “Partial or complete insertion of genitalia organ of a person in the genital organ of another person. In BASITA HUSSEIN –VS- UGANDA SC CR Appeal 35/1995 stated that penetration can be proved by victim’s evidence, medical evidence or other evidence.

73. The defence by the appellant did not rebut the prosecution evidence in prove of penetration. He only tried to introduce elements of grudge between him and PW1. The children lived with him and they called him dad.  There was no prove that the children had grudge with him.

74. The court therefore finds that count two of the charge was proved but the age of the victim will be taken to be 12 years.  As for count 1, the failure to recall PW2 for Appellant to complete her testimony and be subjected to cross examination renders the trial as regards count 1 a mistrial.  The court would have ordered retrial, but due to the passage of time and the fact that the witnesses may not be available, the court declines to order for the same.

75. The court therefore makes the following orders:-

1. Appeal is allowed to the extent that in respect of count 1 the conviction is quashed and sentence set aside.

2. In respect of count II the appeal is allowed to the extent that the age of victimis adjusted to be 12 years, conviction affirmed and sentence substituted with an imprisonment of 20 years which is to run from the date of arrest.

SIGNED, DATED AND DELIVERED THIS 13TH DAY OF JULY, 2017.

C. KARIUKI

JUDGE

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