REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT LODWAR

CRIMINAL APPEAL NO 27 OF 2019

MAXWEL ETABO......................................APPELANT

VERSUS

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

(Being an appeal from original conviction and sentence in Lodwar

Senior Principal Magistrates Court Criminal Case No. 21 of 2019)

JUDGEMENT

1. The appellant was charged with the offense of defilement contrary to Section 8(1) (3) of the sexual offences Act No 3 of 2006 and was tried, convicted and sentenced to   ten (10) years imprisonment.

2. Being aggrieved by the said conviction and sentence, he filed this appeal and raised the following grounds of appeal;

a) The trial court erred in law and in fact when he failed to observe that the key witnesses mentioned by the prosecution witnesses were not summoned in court.

b) That the appellant was not properly identified and/or at all by the prosecution witnesses.

c) That there was contradiction in the prosecution case.

d) The age of the complainant was not proved.

e) The prosecution case was not proved beyond reasonable doubt, thereby leading to a miscarriage of justice.

3. When the appeal came up for hearing, the Appellant who was unrepresented filed an amended grounds of appeal and written submission which he relied upon, while the respondent also filed written submissions which they relied upon.

4. On behalf of the appellant, it was submitted that he was only arrested on the basis that he was looking suspicious and that at the trial, the burden of proof was shifted from the prosecution to the appellant. It was contended that mere suspicion however strong, could not form the basis of conviction as was stated in the case of JOAN CHEBII SAWE v REPUBLIC

5. It was submitted that penetration was not proved and that whereas PW1 testified that they had sex three times on that night, there was no evidence tendered to prove the sexual act, as PW1 stated that she went home and showered.

6. It was submitted further that he was not given an opportunity to prepare for his case as the trial was hurried.

7. By way of highlighting, the appellant submitted that he was framed up when he declined to go out with the complainant and that at the time when he was arrested, he was a student aged twenty years of aged. It was stated that during the time he had been in custody, he proceeded with his education and sat for class 8 examination where he obtained 330 points

8. On behalf of the respondent, it was submitted that the witnesses who testified adduced sufficient evidence to sustain a conviction and that no number of witnesses was required to prove a fact, as stated in section 143 of the Evidence Act. It was submitted that the trial court relied on the evidence of PW1 on the identification of the appellant whose age was proved through the age assessment report and therefore his conviction was safe and free from error.

9. This being a first appeal, the court is under a duty to re-evaluate the evidence tendered before the trial court to come to its own conclusion, while giving an allowance to the fact that, unlike the trial court, it did not have the advantage of seeing and hearing the witnesses. See OKENO v REPUBLIC.

PROSECUTION CASE

10. The prosecution case was that on the material day, PW1 then a student at [particulars withheld] Primary school, was on her way home from the shopping centre when she met the appellant whom she knew as ETAMBO, who asked her to go home with her and she declined at first, but he persuaded her and she agreed.

11. It was her evidence that on reaching his house, he removed her panty and the short she was wearing and asked her to sleep with her, she declined. He then held her by the mouth, warned and threatened to kill her if she screamed and proceeded to have sex with her, three times that night. She then left his place and stayed at the shopping centre, since she was afraid to go home, until her guardian went for her and took her to school.

12. It was her evidence that she was taken to LCRH, before reporting the matter to the police. In cross examination, she stated that she did not know the appellant before the said date and that the appellant had neighbours, but she did not see any when she went to his house.

13. PW2 CA testified that when the complainant did not return from school as usual between 1-2 p.m., at 5 p.m. she called the school but did not go through to the teacher. The following morning, she went to school to inquire of her whereabouts, when she was told that she had been seen at Ushindi Shop where she was found at. She then explained to them that the appellant had taken her to his place and that she took her to the appellant’s place where they found him looking suspicious.

14. PW3 Ngasike John, a Clinical Officer, examined PW1 with a history of having been assaulted by a known person. Her external genitalia were ok, with no discharge of blood, but the hymen was perforated meaning that there was penetration. The age assessment done, confirmed that she was 13 years old.

15. PW4 PC BETTY EREGAI recorded the statement from PW1 who told her that, the appellant took her to his place from Ushindi Shop, undressed her and inserted his penis in her vagina. In cross examination, she stated that she did not record statement from the other child who was with the complainant at Ushindi shop.

DEFENCE CASE

16. When put on his defence, the appellant stated that he was a student at Eldoret Technical Training Institute and that on the 12^th March, 2019, he was at school until 4.00 p.m. when he left for home with his friend and on reaching the plot, the caretaker identified him to three people who were inside a probox motor vehicle. The next day he went to the caretaker and told him to stop gossiping about him and he started insulting him. The following day he was arrested by NPR and placed in custody for three days before being charged. In cross examination, he stated that he used to live with DW2 in the said house.

17. DW2 PHILIP ESEKON corroborated the appellants case, that on 11^th March, 2019, there was a dispute between the appellant and the caretaker of the plot, when he told him that people were moving out of the plot due to insults from him and that on 12^th he was arrested by two NPRs. It was his evidence that it was the caretaker who framed the appellant.

18. In convicting the appellant, the trial court correctly stated that the prosecution case was based on the evidence of a sole identifying witness and on the issue rendered himself thus: -

“It is my considered view that although the prosecution did not during examination in chief ask PW1 about the condition that made her identify him, it would be a mockery of justice if this prosecutorial mistake or oversight would be visited upon the complainant in her quest for justice before this court. I have carefully analysed the evidence and noted the duration within which PW1 spent time with the accused person and she was categorical that they had sexual intercourse 3 times on the night and also that the accused person was on top of her and hereby come to the conclusion that the identification of the accused person by PW1 was proper and it would be far-fetched to deem that there was some doubt as to whom actually was with PW1 on the material night.”

ANALYSIS AND DETERMINATION

19. From the records of appeal and the submissions herein, I have identified the following issues for determination in this appeal:-

a) Whether the appellant was properly identified.

b) Whether defilement was proved.

20. I must point out from the start, that the appellant’s oral submission in court during the hearing of this appeal was not supported by the proceedings before the trial court. The evidence on record is that the complainant was aged 13 years at the time of the alleged offence as per the age assessment report and was a pupil in class two.

21. It is not clear to me whether the appellant meant the complainant as the lady who wanted to go to a club with him or whether it was the complainant’s guardian, who used her to frame the appellant. This account is further contradicted by his defence to the effect that it was the caretaker who framed him, unless the care taker was a lady.  Since the appellant did not move the court to tender in further evidence I will not comment further thereon.

22. On the issues of the identification of the appellant, from the evidence of the complainant, in cross examination she stated that, she did not know the appellant before the date of the alleged defilement, yet in her evidence in chief she knew that he was Etabo, it is not clear to my mind who she came to know that the appellant was called Etabo. PW2 in her evidence in chief also testified that the complainant told her that it was Etabo who took her to his place. In cross examination, she stated that they did not know the appellant.

23. Whereas the trial court rightly stated that this being a sexual offense matter, which does not require corroboration, at the close of the prosecution case, there remained a gap on how the appellant was identified and how he was arrested. In the absence of any evidence tender by the prosecution, to eliminate the complainant guardian as the care taker, who framed the appellant, I find and hold that the appellant’s identification was not free from error.

24. This being a criminal matter wherein the prosecution was under a duty to prove its case beyond reasonable doubt, whereas the court found as a fact that the complainant had spent time with the appellant, and was able to identify the same, there was no evidence tendered before the trial court to show how the complainant was able to identify the appellant whether she knew him before the said night and how he was arrested thereafter.

25. I have further noted that the trial court did not take into account the appellants defence that he was living in the same house with DW2 who was not eliminated as the person who defiled the complaint, if it is true that she was defiled in the house which the two shared together.

26. Having taken into account, the appellants defence, I am of the view that failure to call vital prosecution witnesses including the two NPR officers who arrested the appellant, the teacher of the complainant, the owner of Ushindi Shop, the young girl who was playing with the complainant and the caretaker of the plot, raised a doubt in the prosecution case the benefit of which should have been given to the appellant.

27. In finding that the appellant had opportunity to raise the issue of being framed during the cross examination of the prosecution witness, having found as a fact that the said witnesses stated that they did not know the appellant, weighed against the appellant’s defence that he was framed by the caretaker, the trial court fell into error by shifting the burden to the accused, as what the appellant was required to do is to raise a probable doubt to the prosecution case.

28. Whereas there is evidence that the complainant aged 13 years was defiled as per the evidence of PW3 who confirmed that penetration had taken place, there remains a doubt as to whether the same was done by the appellant.

29. It therefore follows that the appellant’s conviction was not safe as the case of the prosecution against him was not proved beyond reasonable doubt.

30. Before penning off, I must point out that if the complainant was defiled, then the prosecution caused a miscarriage of justice to her in the manner the case was prosecuted, as the defendant having raised the issue of being framed up, the prosecution should have moved the court under the provision of Section 150 of the Criminal Procedure Code to call the alleged caretaker of the plot, to help in resolving the issues in controversy.

31. Having found that the case was not proved beyond reasonable doubt, and whereas there remains a suspicion of the appellant’s involvement in the offense herein, suspicion however strong cannot be a basis for conviction in a criminal trial, it follows that the appeal herein has merit, which I hereby allow, set aside the conviction and quash the sentence herein.

32. The appellant is hereby set free forthwith, unless otherwise lawfully held.

33. I further direct that a copy of this judgement be served upon the State Counsel who prosecuted the case before the Lower Court.

SIGNED DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3^rd DAY OF JUNE 2021 

.........................

J. WAKIAGA

JUDGE

IN THE PRESENCE OF:-

Mr. Tanui for the State

Appellant in person

Potishoi/Biwott – court assistants.