REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAMIRA

HCCRA NO.53 OF 2017

OMURWA DANCAS OGORO……….APPELLANT

-VERSUS-

STATE…………………………….…RESPONDENT

J U D G M E N T

1. This is the judgment of the Criminal Appeal No.53 of 2017.

In Criminal Case No.234 of 2017. The appellant OMURWA DANCAS OGORO was then charged of committing indecent Act with a child contrary to Section 11 (1) of the Sexual offences Act No.3 of 2006.

Particulars therefore were that on 11^th day of March 2017 at [particulars withheld]  of Borabu Sub-County within Nyamira County intentionally touched the breasts of D M B, a child aged 16 years with your hand

2. After a fully fledged trial, the accused was found guilty, convicted of the offence and sentenced to serve 10 (Ten) years imprisonment.

3. Being aggrieved and dissatisfied the appellant appealed against the conviction.

4. His grounds of appeal were consolidated into six grounds:

1. Grounds 2, 4, &  5 became one ground

2. (6)  That the learned Trial magistrate erred in law and fact by not appreciating the provisions of Sec.169 of the Criminal Procedure Code.

3. (7)  That the learned trial magistrate erred in law and fact by failing to appreciate the law though the evidence tendered in court

4 (8) That the learned trial magistrate erred in law and fact by failing to appreciate that evidence of the matron and lab technician were crucial to this case.

REASONS WHEREFORE the appellant prays that:-

a. THAT the appeal be allowed

b. THAT the judgment in Keroka CR. N.235/2017 be set aside

c. THAT the appellant be acquitted

d. Any other remedy this court may deem fit to grant

5. SUBMISSIONS

(a) By the appellant

(i)  In their respective particulars of the offence, first appellant is alleged to have touched the breasts of D M and, second appellant is alleged to have touched the stomach of E G G and forced her to sit on his thigh.

However, nowhere in the proceedings is this stated.  See page 6, paragraph 10 to 20 thereof. Section 121 of Evidence Act, corroboration is material.  PW1’s testimony is not corroborated with the testimony of PW2.  If the court is to rely on evidence other than the victim, such evidence must be corroborated.

(ii) The victims are alleged to be 16 and 17 years of age, respectively.  However, no proof of age was produced in court.  In sexual offences, age of the victim is critical.  No age assessment was called for, nor were birth certificates produced.

I wish to refer the court to Criminal appeal No.43 of 2014 Edward Katana Safari –vs- Republic.  The Judge held: “In its wisdom, parliament chose to categorize the gravity of the offence on the basis of the age of the victim, and consequently, the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt.”

In the instance case, I submit the age of the victim was not proved beyond reasonable doubt as by law required.  Therefore the conviction based on unproven age is not safe.

(iii) There is an allegation of pornographic videos.  This is referred to the judgment at paragraph 20 -30.

However, the same does not appear in the proceedings.  It is difficult to know where the court got this information.

(iv) DW2- Irene Wairimu’s evidence, being a witness for appellant, is however, imputed to appellant 2, word for word, and yet the particulars of their respective offences are quite distinct and different.

(v) On appellant 2 the element of corroboration is also lacking.  Further lack of age assessment and prove of age is also lacking.

  Therefore, I submit that lack of corroboration, makes this conviction unsafe, just like for appellant above.

  (vi) On grounds 6, the court did not set out the points for determination as per Section 169 of the Criminal Procedure  Code.

 Thus on that basis, then the conviction herein should not stand.

(viii)  Failure to call vital witnesses, i.e. the matron, lab technician, D O, was fatal to this case.

We therefore humbly ask this curt to allow this appeal and acquit the two appellants as per the petition in this appeal.

(b) By the Respondent:

(i) Mr. Ochieng concedes the appeal.  He says crucial witnesses were not called by the prosecutor i.e. D O, a classmate of PW2, Dr. Nyabuti and the witness who was the mother of one of the victim and was at the scene.

(ii) Second, the touching of the breasts by the nurses as shown in the particulars of the charge sheet is deemed as an explanation to be a medical requirement.  At page 19 of the proceedings, the magistrate noted that this was understandable.  She however, failed to consider it in her final judgment.

(iii) On age, the prove is necessary especially as the two girls aged 16 and 17 were on the verge of adulthood.

(iv) I have also noted the contradictory evidence of the two victims’ testimonies.

(v)  The four witnesses were not duly competent, they were compellable at law.

(vi) The particulars as described in the charge sheet, does not support the charge in the proceedings.

(viii)  With regard to pornographic materials, the alleged phones ought to have been produced in court.  They were not.  They would have been of corroborative value to this case.

(c)  First appeal entails the court to read, evaluate the testimonies of the lower court and come to its own conclusion. This being the first appeal this court is enjoined to read the proceedings of the lower court evaluate the evidence and come to its own conclusion bearing in mind that it neither saw nor heard the witnesses when they testified before the lower court which fact is the only allowance this court must make in this consideration. See generally Okeno Vs Republic [1972] E.A. page 32.

(d) Analysis

I agree with the appellant that the testimonies of PW1 is not corroborated.

Second, the age of the victim in crucial to this offence and must be proved beyond reasonable doubt.  It was not proved in this case.

Three crucial witnesses were not called.  The phones allegedly displaying pornographic videos were not produced in court.  The particulars to the charge sheet did not support the charge respectively.

(e) Findings

For those reasons, this appeal be and is hereby allowed. Accordingly, the appellant be and is hereby acquitted.  He is at liberty unless lawfully held. This judgment applies, mutatis mundandis, to Criminal Appeal No.54/2017

Orders accordingly.

Dated and delivered at Nyamira High Court this 5^th day of December, 2017.

C.B. NAGILLAH

JUDGE

In the presence of:

Minda & Kaburi hold brief for Nyambati for the appellant

Ochieng’ for the Respondent

Mercy Court Clerk