REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

CRIMINAL APPEAL NO. 2 OF 2016

DAVID KIPNGENO BETT.........................................APPELLANT

VERSUS

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

(Appeal from the conviction and sentence in Molo Criminal Case No. 1477 of 2013 (Hon. H. M. Nyaga, SPM) on 3.12.2014)

JUDGMENT

1. The appellant was charged with the offence of defilement contrary to section 8 (1) and (3) of the Sexual Offences Act.  The particulars of the offence are that on the 17^th day of July 2013, at around 1300 hours, at [particulars withheld] village in Kuresoi District of Nakuru County within Rift Valley Province, he intentionally caused his penis to penetrate the vagina of S C, a child aged 3 ½ years.

2. The appellant faced a second count of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act. The particulars of the offence were that on the 17^th day of July 2013, at [particulars withheld] village in Kuresoi District of Nakuru County within Rift Valley Province, intentionally touched the vagina of S C, a child aged 3 ½ years with his penis. He was tried and convicted of the offence of defilement and sentenced to life imprisonment.

3. The appellant was dissatisfied with both his conviction and sentence and has filed the present appeal in which he raises the following grounds:

a) That the learned trial magistrate erred both in law and fact when he acted on forged evidence to connect as the P3 form produced in evidence is doubtful.

b) That the learned trial magistrate erred in law and fact when he convicted me in the present case yet failed to that the allegations as age of the alleged victim was not proved.

c) That the trial magistrate erred in law and fact when he convicted me on inconsistent testimonies.

d) That the trial magistrate erred in law and fact when he dismissed my plausible defence relying on weak prosecution evidence.

e) That the trial magistrate erred in law and fact by failing to consider my evidence.

f) That the trial magistrate erred in law and fact by failing to consider that the appellant was not examined by PW4 to prove that the offence was committed by me.

g) That the trial magistrate erred in law and fact by allowing the evidence of PW2 which evidence was a hearsay.

4. As this is a first appeal, I am required to re-evaluate the evidence before the trial court and reach my own conclusion. In doing so, I must bear in mind that I have neither seen nor heard the prosecution witnesses, which the trial court had the advantage of doing – see Okeno vs R [1972] EA. 32 and Mohamed Rama Alfani & 2 Others vs Republic, Criminal Appeal No. 223 of 2002.

5. The prosecution called 5 witnesses.  PW1 was the complainant, a child aged 3 ½ years.  Her testimony was that the appellant, whom she referred to as ‘uncle’, did ‘bad things’ to her, and she felt pain. She pointed at her crotch as she gave this testimony.  She further stated that he had done it in the house, and that he had removed her panty. In cross-examination by the appellant, she stated that he did bad things to her, and she had again pointed at her crotch.

6. PW2, A L, was the mother of the complainant.  She stated that her daughter was born in October 2009, and had just turned 4. Her testimony was that on 17^th July 2013, at about 3.00 p.m., she wanted to wash PW1, and PW1 winced in pain.  PW2 asked her what was wrong, and the complainant said that she was feeling pain as ‘uncle’ had done bad things to her.  Her vaginal area was reddish, and PW2 rushed her to hospital.

7. According to PW2, the appellant used to work for her. On the material day, he had packed his bags and wanted to leave before she noticed what had happened to PW1.  He fled while she was at the hospital with the complainant, and was traced in Kericho.  In cross-examination, she stated that the accused had been with the child in the compound.

8. PW3, E B, was a neighbour of PW2, the complainant’s mother.  Her testimony was that on the material day, she passed through PW2’s home when PW2 was about to wash PW1, and the child winced in pain.  PW1 told them what had happened to her, and she was rushed to hospital by PW2.

9. The evidence of PW4, John Kipkoech Rono, a Clinical Officer at Olenguruone Hospital, was that he had examined the child and filed a P3 form which was produced in evidence.  He testified that on examination, the child was 3 ½ years old. She had a tear on the lower vagina, the hymen was missing, and the vagina hole was open.  Laboratory tests showed pus cells, a sign of infection.  He concluded that there was penetration due to the tear and the missing hymen. He had not examined the suspect.  In cross-examination, he stated that it was desirable that the appellant be examined then, if he was available.

10. I note that after the testimony of PW4, the charge sheet was amended to reflect the charge of defilement rather than attempted defilement, which the appellant had initially been charged with in the first count.

11. The appellant then applied for PW3, E B, to be recalled.  In cross-examination, she stated that the child had told her that it was ‘Uncle Dave’ who did bad things to her, and that the appellant had fled to his rural home after the incident.

12. PW5, PC Faith Muriungi, was the investigating officer, then attached to Kaptagich Police Post.  She was on duty on the material day, 17^th July 2013, when the case was assigned to her. She had taken the complainant to Kaptagich Health Centre and issued her with a P3 form.  The child had described how ‘uncle Dave’ had defiled her. The accused had been arrested at Keringet, and she had charged him with the offence.  In cross-examination, she stated that the accused had been arrested after several days, as he had fled after the incident, and this is why he had not been taken to hospital. The testimony of PW5 brought the prosecution case to an end.

13. Having found that the accused had a case to answer, the trial court placed him on his defence. The appellant gave sworn evidence and called no witnesses. In his defense, he stated that he used to work as a herds-boy near the complainant’s home. That the work was too much, so he stated that he wanted to leave.  His boss refused to pay him and gave him other work, so he decided to take off. He further stated that after one week, he was arrested and the present charge ‘fixed on him’. He denied the charge, asserting that his former boss just wants him jailed, the doctor was paid to fix him, and all the prosecution witnesses were lying. In cross-examination, he stated that he was a neighbour of the complainant; that he used to work for Agnes (PW2); that he was a herdsman but she added tea picking duties. He confirmed that Agnes had a young child, but denied that he had defiled the child.

14. In his judgment, the trial court found that the prosecution had established that the complainant had been defiled as shown by the medical evidenced adduced by PW4 and the P3 form produced in evidence which showed signs of sexual penetration. The identity of the person responsible was not in dispute, as the complainant knew the accused and had identified him. The trial court accordingly found the appellant guilty of defilement and convicted him and sentenced him as provided by law. He dismissed the appellant’s allegations that he had been fixed baseless.

15. The appellant filed written submissions which he indicated he intended to rely on. In oral submissions at the hearing, he stated that he wished to add to his written submissions that a medical examination was not done on him but was only done on the complainant. Further, that there was no evidence to show that he was the one who committed the offence.  He also stated that while it was alleged that he had defiled a young girl, when she was taken to hospital, she was walking on her own.

16. In submissions on behalf of the state, Ms. Keli opposed the appeal. The position of the state was that the charge against the accused was proved, and the evidence was overwhelming.

Analysis and Determination

17. I have considered the above evidence and the submissions of the appellant and the state.  I will address myself to each of the grounds raised by the appellant in his submissions, the state’s response thereto, and my finding on the said ground.

Defective Charge Sheet

18. The appellant argues in his written submissions that the charge sheet against him was defective. This is because the word “unlawful” was left out of the charge sheet, which in his view renders the charge defective. In response, Ms. Keli submitted that the charge sheet was proper, and the appellant’s contention was unfounded and should be dismissed. Counsel further noted that the charge sheet was amended on 23^rd April 2014 from a charge of attempted defilement to defilement.  The accused had pleaded not guilty and the case proceeded to hearing. In the state’s view, even if there was an omission, as alleged, of the word ‘unlawful’, it was an omission that can be cured under section 382 of the Criminal Procedure Code.

19. Having considered the submissions by the parties with respect to the charge facing the appellant, I am satisfied that this ground has no merit. The accused was charged with the offence of defilement contrary to section 8(1) of the Sexual Offences Act, as the amended charge sheet of 23^rd April 2014 shows.  Section 8 of the Sexual Offences Act as follows:

(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.

20. I have looked at the amended charge sheet presented to court on 23^rd April 2014. Count one reads that “on the 17^th day of July 2013, at around 1300 hours, at [particulars withheld] village in Kuresoi District of Nakuru County within Rift Valley Province, he intentionally caused his penis to penetrate the vagina of S C, a girl aged 3 ½ years”.

21. In my view, the submission that the charge sheet was defective because it did not have the word “unlawfully” is therefore of no assistance to the appellant. The charge as framed is proper and accords with the provision of law that creates the offence with which he was charged. It is my finding therefore that the appellant was tried and convicted with respect thereto properly and lawfully.

Age of the Complainant

22. The appellant complains that the age of the appellant was not proved as no birth certificate, age assessment or other relevant document was produced. That in the absence of such document, there was an arguable case and the prosecution case was not proved beyond reasonable doubt. The response from the state is that the age of the complainant was proved, and the record of the court indicates that the mother of the victim testified that the child was born in October 2009.

23. I note from the record that the child’s mother stated that the child was born in October 2009, and that she had just turned 4 at the time of the hearing. As submitted by Ms. Keli for the state, the mother of the child is in the best position to testify with respect to the age of the child.  I note in this regard the words of the court in Mombasa High Court Criminal Appeal No. 348 of 2010 – Faustine Mghanga vs Republic in which the court held that the testimony of the mother on the age of a child can be used as proof of the age of the child, that indeed no-one else is in a better position than a mother to know the age of the child. In my view, therefore, the fact that the child’s birth certificate or an age assessment report was not produced in evidence was not fatal to the prosecution case.

Inconsistent Testimony

24. The appellant complains that he was convicted on inconsistent testimony. He submits that PW 2 was an untrustworthy witness, and that the actual date on which the offence was committed was not clear. He also submits that the evidence was contradictory as PW2 said he was arrested in Kericho, while PW5 stated that the accused was arrested in Keringet.

25. In response, the state submitted that the complaint was unfounded as the record is clear on how the prosecution witnesses testified and how their evidence was corroborative.

26. I have considered this ground against the evidence adduced by the prosecution, which I have set out above. The child was clear in her testimony that “uncle”, the appellant, whom she pointed at in the courtroom, did “bad things’ to her. She pointed at her crotch. Her mother testified that she winced when she was being washed, and that she told her and PW3 that the appellant had defiled her.

27. The evidence of the clinical officer, PW4, confirmed that the child had been defiled: her vagina was open and the hymen broken, and there was penetration. PW4, the investigation officer, testified that the accused fled after the offence. Taken in its totality, the prosecution evidence was consistent, and it pointed at the appellant as the person who defiled the complainant, a child of 3 and a half years at the time the offence was committed. While there is some inconsistency with respect to where the appellant was arrested, in my view, this is not a material inconsistency. This ground, therefore, must also fail.

Failure to give reasons for dismissal of defence

28. The appellant challenges the decision of the trial court on the basis that the trial magistrate dismissed his defence without giving sufficient reasons. I have considered the analysis of the trial court with regard to the defence. The court considered the sworn statement of the appellant but dismissed it on the grounds, first, that there was no evidence that the clinical officer was bribed as claimed by the appellant, and secondly, that there was no relation between the unnamed employer’s salary issues with the accused and the offence against the complainant. The trial court also noted that it believed the evidence of the complainant, whom it doubted could be manipulated to lie to the court.

29. My own analysis of the evidence before the trial court leads me to the conclusion that the trial court did not err in dismissing the defence put forward by the appellant. The prosecution evidence was strong and consistent, and was not shaken by the defence statement which consistent of an allegation that he had been fixed by his former employer, yet these allegations were not put to the witnesses when the appellant cross-examined them. I can therefore find no basis for faulting the decision of the trial court on this score.

Failure to Subject the Appellant to a Medical Examination

30. The appellant submitted at the hearing that he had not been examined by a doctor after the incident, that it was only the complainant who was examined. The state’s response was that it is not mandatory that samples be taken from an accused person who has committed a sexual offence to confirm that he has committed a sexual offence. According to Ms. Keli, the decision whether or not to subject an accused person to a medical examination is discretionary, as provided under section 36 of the Sexual Offences Act.

31. The second issue was that there was no evidence or exhibit produced to link him to the offence.  The response from the state is that the evidence of the witnesses and the production of the P3 form clearly pointed to the appellant as the person who committed the offence against the appellant.   The fact that the complainant was walking on her own when she was taken to hospital does not, in the view of the state, negate the fact that she was defiled by the appellant.

32. Section 36 of the Sexual Offences Act provides as follows:

Notwithstanding the provisions of section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence.

33. My reading of this provision is that there is no requirement that a person who is charged with committing a sexual offence be taken to court for the purpose of obtaining evidence that he committed the offence. The Sexual Offences Act, in the section set out above, leaves the discretion to the trial court, which I believe would be exercised on the basis of the circumstances before the court.  In the present case, the trial court believed the evidence of PW1, without corroboration, which it was entitled to do under section 124 of the Evidence Act. In my view, there was no requirement that the accused should have been subjected to medical examination to prove whether or not he had committed the offence.

34. Finally, it is difficult to see what value the complaint that the child was walking on her own while she was being taken to hospital adds to the appellant’s appeal.  At any rate, this appeal is without merit, and it is hereby dismissed. Both the conviction and sentence are upheld.

Dated Delivered and Signed at Kericho this 6^th day of December 2017

MUMBI NGUGI

JUDGE