REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

HCCRA NO. 10 OF 2019

REPUBLIC........................................................................................APPELLANT

VERSUS

JOSEPH AMOS SAMBAYI............................................................RESPONDENT

(Being an appeal against the acquittal of the accused by Hon. Kahara Senior Resident Magistrate sitting at Chuka Law Courts in Criminal Case Number S/O 2 of 2018, delivered on 29^th April 2019)

JU D G E M E N T

1. JOSEPH AMOS SAMBAYI, the Appellant herein was charged with four  counts of defilement contrary to Section 8(1) as read with  Section 8(2) of  Sexual Offences Act No. 3 of 2006.

2. In Count I the particulars were that on 10^th January, 2018 within Tharaka Nithi County, the Appellant  defiled (name withheld) a girl aged 6 years.  In the  same charge he faced an  alternative count of indecent  Act with the same child contrary to Section  11(1) of the Sexual Offences Act.

3. In Count II, the particulars were that on 10^th January 2018  within Tharaka  Nithi County the Appellant defiled one (name withheld) a girl aged 7 years.  He also faced an alternative  charge of indecent Act with the same child.

4. In Count III, the particulars were that on diverse dates between year 2016  and 10^th January 2018, the Appellant defiled one (name withheld) a girl  aged 10 years.  He also faced an alternative charge of indecent act with the  same child.

5. In Count IV, the particulars were that on 10^th January 2018 within Tharaka Nithi County, the Appellant  defiled one (name withheld) a girl aged 11 years.  He also faced an  alternative charge of indecent act with the same child in the same place.

6. The Appellant denied all the counts before the trial court and after trial he  was found not guilty of all the charges and acquitted.  The State through the  Director of Public Prosecution felt aggrieved and preferred this appeal  raising the following 9 grounds namely;

i. That the learned trial magistrate erred in law and fact by finding  that the prosecution did not establish a prima facie case.

ii. That the learned trial magistrate erred in law and fact by failing to consider the overwhelming evidence on record in relations to the serious offences committed.

iii. That  the trial court erred by holding that the Respondent did not commit the offence yet all the ingredients of the offence of defilement were presented and proved.

iv. That the learned trial magistrate erred in law and fact by failing to consider that there was no reason for the minors to lie in their evidence which were seriously corroborative.

v. That the learned trial magistrate erred in law and fact by not making a finding on the alternative charges brought against the Respondent yet enough evidence was tendered.

vi. That the learned  trial magistrate erred in law and fact by disregarding the fact that the offences were committed over a long period of time and not 10^th January 2018.

vii. That the learned trial magistrate erred in law and fact when she failed to consider the age of the complainant and their relationship with the Respondent.

viii. That the learned trial magistrate erred in law and fact by erroneously concluding that a finding of no injuries on the genitalia of the victims meant that the Respondent had not committed the offence..

ix. That the leaned trial magistrate erred by misinterpreting and misapplying the law in making her decision that no prima facie case was established.

7. A brief summary of the facts presented to the trial court reveals that, all the  four children were alleged to have been defiled by their father who is   disabled and moves with the assistance of a wheel chair.  The red flag  regarding defilement was raised by teachers of the school that all the minors  attend and it is apparent that their mother said to be a bar maid was away  from home most of time and hence the opportunity afforded for the offence  to take place over a long period of time.  The trial court found the medical  evidence regard to the defilement wanting and in conclusive and based on  that the trial court found it unsafe to place the Respondent on his defence.

8. I have perused through the evidence tendered by all the prosecution  witnesses.  This court as an appellate court is being called upon to overturn a  finding of no case to answer to a positive finding of a case to answer.  For  reasons that will be obvious at the end of this judgment, this court finds that  it is undesirably and may be prejudicial to delve into the details of the  evidence tendered and analyse them.

9. I will therefore go straight to the main issue for determination in this appeal  which is whether based on the evidence tendered the trial magistrate erred  by concluding that no prima facie case had been established.  Given the fact  that this is a first appeal, I appreciate the fact that this court unlike the trial  court does not have the privilege of witnessing the witnesses and especially  the minors testifying on the stand.  This court is mandated on appeal to  analyze the evidence placed before the trial court in order to ascertain if the  trial court properly considered the evidence on record and arrived at the  correct or right conclusion.

10. The charges facing the Respondent were related to defilement and     defilement is defined under Section 8 of  Sexual Offences Act as;

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

  'Penetration' is defined under Section 2 as partial or complete insertion of  the genital organs for a person into genital organ of another  person.  Under  Section 8(2) any person convicted of defilement with a child aged 11 years  or less is liable to be  sentenced to imprisonment for life.

11. For the offence of defilement to be established three ingredients must be  established and proved.

i. Victim must be a minor

ii. There must be penetration whether complete or partial

iii. Identity of the offender

12. The Appellant has contended in its submissions that it established and  proved all the above elements.  Without necessarily going into the details of  the evidence tendered by the prosecution witnesses, what appears to have  swayed the trial court's mind was the apparent inconsistency on the date(s)  of the alleged offences as narrated by the minors and their teachers (PW1  and PW3) and the dates on the charge sheet.  Save for the 3^rd count which   reflected that the offence of defilement was committed over a long period of  time, the other counts indicate that the offence took place on 10^th January  2018.  It is apparent from the medical evidence tendered that all the minor  (victims) were examined on 11^th January 2018 and the medical evidence as  per the P3 failed to note any lacerations bruises or any sign of defilement.   That evidence in my view is understandable given that the incident of  defilement in respect to all the minors did not occur on 10^th January 2018.   All  the four minors save for PW6 were categorical that the indecent  occurred on diverse dates they could not remember.  From the evidence  given by  the teachers (PW1 and PW3) one can clearly see a case of  negligence and irresponsibility by the teachers who despite having received  information regarding defilement never took decisive  action immediately  because they allegedly did not belief the minors at first but later took action  after they eventually believed them.  The victims in my view had no role in  failure by the teachers to quickly take action.  In fact two of the minors  stated that they informed their mother who did not believe and instead of  taking time to listen and/or interrogate the issue further she proceeded to  beat the minors as per the evidence of PW6.

13. This court finds that while the investigating officer and prosecution could  have made errors by indicating that the minor were defiled specifically on  10^th January 2018 when the evidence indicated a prolonged period of abuse,  the victims who are minor of tender years really had nothing to do with  those errors.  The trial  court's decision seemed to have misdirected herself  on that score and had it properly directed itself, perhaps its conclusion would  have been to the contrary.  In fact the trial court found that the minors were  not defiled on 8^th November 2018 as they also disputed.  But that did not  mean  they were not ever defiled. The question of anomaly on the dates in  the charge sheet could have been an issue for determination at the end of  trial  particularly as to whether the error or omissions in the charge are one  of those errors curable under Section 382 of Criminal Procedure Code.

14. I am further  persuaded that by relying heavily on medical examinations  which apparently was done much later after the ordeals   the trial court  misdirected itself instead of applying  mind to the provisions of Section  124 of the Evidence Act.

15. The trial court also appears to have fallen into error by not making a finding  on the alternative count because  it was upon the court to state exactly that  the evidence tendered was either sufficient or insufficient to sustain the main  charge and the alternative charge because the evidence was presented to her.   The question that begs answers is if the minors were found to be credible or  truthful but the medical evidence failed to establish or prove penetration,  surely a finding on the alternative charge of indecent act with a minor should  have been made.

16. There is also disturbing  question of how come all the minors presented  same result upon examination which was absence of hymen or broken  hymen.  These are minors aged between 6 and 11 years and all have then  have broken hymens and all claim to have been defiled by their father when  their mother was away.  With this facts/evidence presented by prosecution  was the trial court really correct to find that there was no prima facie case or  sufficient evidence to place the Respondent to answer to the charge? I  have  considered the prosecution's case in its entirety and based on the evidence   presented it was erroneous for the trial court to make a finding of no case to  answer.  I agree with the Director of Public Prosecution's contention that the  expert's opinion was erroneous because it was based on erroneous report that  the minors had been defiled on 10^th January 2018 rather than ever a lengthy  period of time.

17. The standard of proof applicable at the stage of making a finding under  Section 210 of Criminal Procedure Code i.e whether an accused has a case  to answer, is lower than beyond reasonable doubt.  The evidence presented  should establish a prima facie case against an accused person so that if he  chooses to remain silent, the evidence should be sufficient to find a  conviction.  This court  is persuaded by the decision in the case of Daniel  Maina wambugu -vs- Republic [2018] eKLR where the court upheld a  conviction by the lower court based the credibility of the minor who testified  that she had been defiled.  The court held that penetration need not be  absolute or ejaculation  be present for the offence to be established and that  offence of sexual intercourse can be proved without medical evidence.  The  minor had made reference to past sexual encounters which was corroborated  by the ruptured hymen.  The same set of facts seem to be replicated in the  instant case and this shows that the learned trial magistrate as I have  observed above appears to have misdirected herself on this critical point of  law and fact and  in the end arrived at the wrong conclusion that there was  insufficient  evidence to place the Respondent on his defence.  The  prosecution's case in my view apart from the anomaly in 1^st, 2^nd, and 4^th  count on the issue of dates, had no gaps.

18. The Respondent has submitted that the minors could not be believed by their  own mother and therefore it could not be expected that the learned trial  magistrate should have believed them.  However there was evidence  tendered  indicating that the mother was irresponsible and a drunkard and  that fact appears to be well grounded because she took no action even when  she learnt of the case and never presented herself as a witness.  In such  circumstances the minors who obviously have nothing to do with their  mother's odd behaviour, should not be left exposed.  Such vulnerable  children require equal protection of the law and it would be a miscarriage of  justice, if the minors fails to get justice on account of acts of omission and  commission of an irresponsible parent more so when the man she is living  with is accused of sexually molesting the children.

19. The Respondent has also contended that the teachers of the minors who  testified did not corroborate the minors' claims because they did not witness  the incident and that their evidence could not have been used by the trial  court to find that there was a case to answer.  However  I have keenly  considered what and how the minors narrated their ordeals and I find no  basis to question their credibility.  It is also unfounded that corroboration of  a case can only be provided by an eye witness.  If that was  the case, no case  of sexual offence could be sustained because it is often committed in secrecy  or privacy.  The minor's are of tender ages and  the description by one of the offender's of sexual organ as "snake" or "dudu" in my view added weight  rather than doubt to prosecution's case.

20. This court is convinced that even if the standard used in the decision of  Rannalal Bhat -vs- Republic (Criminal Appeal No.76 of 1957) was used,  the results would have been the same.  The Respondent based on the  evidence tendered had a case to answer. 

In the end this court finds merit in this appeal.  The decision by the trial  court on 29^th April 2019 that the Respondent had no case to answer is set  aside and in its place a finding is hereby made that the Respondent has a  case to answer.  Consequently, I will refer this file to another court of competent jurisdiction to proceed by dint of Section 200(1) of the Criminal  Procedure Code and Section 211 and proceed to finalize the trial given that  ordering a pre-trial as prayed by the state may not be in the interest of justice  because of many  factors such as possible loss of memory by witnesses,  witness apathy, trauma and pain caused to the minors by asking them to  begin the narrative again and the likelihood of prejudice to the Respondent  who would have been forced to stand trial where 10 witnesses would be  heard afresh.   This court is well guided in that regard with the Court of  Appeal decision in Abdi Adan Mohammed -vs- Republic [2017] eKLR  where the  court held inter alia that  starting cases afresh three times can  cause witness fatigue and apathy.  The proceedings of 10 witnesses heard  during trial are typed and it is in the interest of justice in my view to direct  that given the circumstances of this case including the fact the Respondent  herein is a foreigner and not likely to raise bond, the matter should proceed  before another magistrate of competent jurisdiction under Section 200 of Criminal Procedure Code.  To that end, I direct that the lower court file be  mentioned before the duty court a day after delivery of this Judgment.

Dated, signed and delivered at Chuka this 13^th day of November 2019.

R. K. LIMO

JUDGE

 13/11/2019

Judgment dated, signed and delivered in the open court in presence of  Momanyi for Appellant and Mutani for Respondent.

R.K. LIMO

JUDGE