REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE

CRIMINAL APPEAL NO. 97 OF 2018

(Appeal arising out of conviction and sentence of Hon. D. Wangeci (Senior Resident Magistrate)

in Kitale Chief Magistrate’s Court Criminal Case (S.O) No. 102 of 2017

delivered on the 5^th day of November 2018)

JACOB SAIDI SIMIYU...................... APPELLANT

-VERSUS-

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

JUDGMENT

The Appellant, JACOB SAIDI SIMIYU, was charged with the offence of defilement of a child contrary to Section 8 (1) as read together with Section 8 (4) of the Sexual Offences Act. The particulars of the offence were that on the 22^nd day of August 2017 at Luuya farm within Trans-Nzoia County, the Appellant intentionally caused his penis to penetrate into the vagina of A.B.N, a child aged sixteen (16) years. In the alternative, the Appellant was charged with the offence 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 22^nd day of August 2017 at Luuya Farm within Trans-Nzoia County, the Appellant intentionally caused the contact between his penis and the vagina of A.B.N, a child aged sixteen (16) years. When the Appellant was arraigned in court, he pleaded not guilty. After full trial, the Appellant was convicted of the main charge and sentenced to serve fifteen (15) years imprisonment.

The Appellant was aggrieved by his conviction and sentence. In his petition of appeal, the Appellant cited that the evidence before the trial court remained uncorroborated. He lamented that his defence was dismissed yet it was cogent. He maintained that the Prosecution failed to prove its case to the required standard of proof beyond reasonable doubt. He was aggrieved that the trial court had convicted him without cautioning itself of the dangers of relying on the testimony of relative witnesses. In the premises therefore, the Appellant urged this court to allow the appeal, quash the conviction and set aside the sentence that was imposed on him.

During the hearing of the appeal, both the Appellant and the Prosecution relied on written submissions in support of their respective rival positions. The Appellant contended that Article 49 (1) (f) of the Constitution was breached as he was brought to court on 25^th October 2017; two (2) months after his arrest. He lamented that he only took plea two (2) years after his first arraignment hence his right to a fair trial was infringed.  He added that his constitutional right under Article 50 (2) (g) of the Constitution was breached since he was neither informed nor afforded legal representation by the trial court. He insisted that the charge sheet was defective for having a dubious date when the offence was alleged to have occurred. He stated that he took plea two (2) years later rendering the trial process prejudicial. He cited contradictory statements in the evidence of the Complainant and PW4 regarding the date of the offence and the age of the Complainant as well as the evidence of PW4 and PW3. He urged the court to find these contradictions material.  He maintained that age was not proved to the required standard of proof. He questioned the credibility of the Complainant’s evidence dismissing it as contrived. He maintained that he had been framed. He insisted that the investigations done was inadequate since the evidence gathered was not sufficient to sustain his conviction.

On the part of the State, Learned Prosecutor Mr. Omooria submitted that all the ingredients to establish the charge of defilement had been sufficiently proved. He submitted that there was sufficient corroboration of evidence.  He cited Section 124 of the Evidence Act which allowed the evidence of a single witness to sustain a conviction if the court found that it was truthful.  He dismissed the Appellant’s defence as weak. On the evidence of relative witnesses, he submitted that the evidence was truthful. The sentence imposed on the Appellant was lawful.   He urged the court to uphold the conviction and affirm the sentence.

The Prosecution called six (6) witnesses in a bid to establish its case against the Appellant. PW1, A.B.N, the Complainant testified that she was a class seven (7) student at M Primary School. She was aged sixteen (16) years. On 22^nd August 2017, the Complainant paid a visit to the Appellant at his house.   She recalled that the Appellant took her into his grandmother’s house where he forcefully had sexual intercourse with her.

Meanwhile, PW4 PCN(related to the Appellant by marriage) testified that on 28^th August 2017 on Tuesday, his daughter, the Complainant, went missing. He was informed that the Complainant had earlier in the day proceeded to the nearby river with the Appellant. He went to the Appellant’s homestead in the company of JN, SW, BA and FW to look for the complainant. They found the Appellant’s wife who informed them that the Appellant had locked her out of the house.  They proceeded to the Appellant’s grandmother’s house where the Appellant and the Complainant were caught red handed in the sexual act.  They were beaten up. They proceeded to tie them.  PW4 had previously cautioned the Appellant against having a relationship with the Complainant.  They were then taken to Keiyo AP Camp where statements were recorded.

PW6 APC EDDY OTIENO testified that on the material day four people approached him in the company of the Appellant and Complainant. They were tied together.   He arrested the Appellant and detained him at the AP Camp.  The Appellant was later taken to Kwanza Police Station where he was booked.

PW5 CORPORAL JOHN KIMANI recalled receiving the Appellant and the Complainant in the company of two Keiyo APs on the wee morning hours of 23^rd August 2017. On the previous night, the Complainant’s disappearance had been reported. He then conducted his investigations and pieced together the evidence. He formally laid the present charges against the Appellant.

While stating that the Complainant was fourteen (14) years old, PW4 acknowledged the contents of the age assessment report that the Complainant was sixteen (16) years old at the time of the offence. PW2 DR. FALIS SILALI testified as to the age assessment of the Complainant. His evidence, on behalf of DOCTOR OYIEKE was that the Complainant’s dental formula was examined as follows:

“The patient is in permanent dentation. All permanent teeth present the oral cavity, except the 3^rd molars were not erupted. X-ray was done and it showed that all incisors, canines, premolars, 1^st and 2^nd molars were present and completely formed, upper 3^rd molars ground formation was complete and root formation had commenced and lower 3^rd molars were congenitally missing. Given that finding, the age was simply sixteen (16) years.”

The age assessment report was marked for identification as Prosecution exhibit 2.

The Complainant was examined on 23^rd August 2017 by PW3 STELLA NABUTILO MUKITE Clinical Officer at Kwanza Sub-County Hospital. She estimated her to be sixteen (16) years old based on her physical attributes. She found a whitish discharge around the vagina. She administered treatment to the Complainant. The hymen was broken. She concluded that there was penetration as the hymen was not intact. She produced the P3 form that she filled as Prosecution exhibit 1.

The Appellant was placed on his defence. His sworn testimony was that on 23^rd August 2017 at around 7:00 a.m., he was asked by unidentified persons to accompany them to the market. He was at home at that time. He was beaten on the way. He was then taken to the police station where the present charges were laid against him. He denied the offence.

This being a first appeal, it’s the duty of this court to re-consider and to re-evaluate the evidence adduced before the trial magistrate’s so as to reach its own independent determination, whether or not to uphold the conviction of the Appellant.  In doing so, this court is required to be mindful that it neither saw nor heard the witnesses as they testified and therefore cannot make any comment regarding the demeanour of the witnesses (See Njoroge -vs Republic [1986] KLR 19).  In the present appeal, the issue for determination by this court is whether the Prosecution established to the required standards of proof that the Appellant committed the offence that he was charged with. 

For the Prosecution to sustain the charge of defilement, it must establish that the following three ingredients to the required standard of proof:

1. Age of the Complainant

2. Penetration

3. Identification of the perpetrator

On the Complainant’s age, PW1 testified that she was sixteen (16) years old at the time of the offence. PW4, the Complainant’s father, although testifying that the Complainant was fourteen (14) years old, acknowledged and adopted the age assessment report produced by PW2 as Prosecution exhibit 2 ascertaining her age as sixteen (16) years at the time of the offence. Furthermore, the P3 form, Prosecution exhibit 1 established that the Complainant was sixteen (16) years old at the time of the offence. This court thus finds that the age of the complainant was ascertained by the Prosecution to the required standard.   This court therefore holds that the complainant was a child within the meaning ascribed to the term under Section 2 of the Children Act.

The next ingredient is penetration. Section 2 (1) of the Sexual Offences Act defines “penetration” to mean “the partial or complete insertion of the genital organs of a person into the genital organs of another person.”

The evidence of the Complainant was that on 22^nd August 2017, the Appellant dragged her to his grandmother’s house. He then sexually assaulted her. PW4 caught the Appellant and the Complainant in the act. PW3 who examined the Complainant within twenty (20) hours after the sexual contact observed a whitish discharge on the Complainant’s vagina. Her hymen was torn. Her conclusion was that there was penetration. This court concludes that penetration was proved to the required standard.

On the identification of the perpetrator, PW1 testified that she knew the Appellant. In fact, she had paid him a visit on the date of the offence. PW4 testified that he caught the Appellant and the Complainant in the act.  He knew him prior to the sexual assault.    The Appellant was positively identified by the Complainant and PW4 at the scene of crime. He was then taken to PW6 and later PW5 where he was arrested.  This court sees no reasons to interfere with this finding by the trial court in relation to the identity of the perpetrator.   

This court now turns to the Appellant’s grounds of appeal. With regard to allegation of contradictory evidence, this court finds that the evidence presented by the Prosecution was consistent and credible.   On the evidence of PW4 as to the date the offence occurred, this court finds the contradiction minor as the charge sheet and the evidence of the other witnesses set out the correct date.   On the delay in taking plea, this court observes that the Appellant initially took plea on 25^th August 2017. The Prosecution on 29^th May 2018 amended the charge sheet under Section 214 of the Criminal Procedure Code. The Appellant did not oppose the said application to amend the charge sheet. He proceeded to take fresh plea and the same was accordingly recorded.

On whether the Appellant was informed of his right to legal representation, this court notes the provisions of Article 50 (2) (g) of the Constitution. This court appreciates that it is indeed incumbent upon the trial court to inform an accused person on his right to legal representation. This position has been adopted in our jurisdiction for the reason that charges, especially brought under the Sexual Offences Act, carry a mandatory minimum sentence. It would thus best practice for the accused to be informed of this right at the beginning of the trial. Lord Denning in Pett vs. Greyhound Racing Association [1968] 2 All ER 545 held thus:

“It is not every man who has the ability to represent himself on his own. He cannot bring out the point in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A Magistrate says to a man; ‘you can ask any questions you like;’ whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him and who better than a lawyer who has trained for the task.”

A cursory perusal of the proceedings at trial reveal that indeed the Appellant was not informed of his right to legal representation. What then is the consequential effect of the failure to do so in the circumstances of this case?  Mrima J held thus in NMT alias Aunty v Republic [2019] eKLR:

“There are two schools of thought on the issue. The first school fronts the position that once the derogation of the right is confirmed then the entire proceedings, judgment and sentence before the trial court are vitiated and stand null and void ab initio. The other school fronts the position that failure to inform an accused person of his/her right to legal representation does not necessarily have the effect of vitiating the proceedings in a criminal trial unless it is proved that substantial prejudice to the accused person or a miscarriage of justice was occasioned.”

This court takes the second position in this matter. It is not on record that any substantial injustice was occasioned on the Appellant. Save for the failure to be informed of his right to legal representations, the Appellant was afforded all rights   under Article 50 (2) of the Constitution.  The trial process was fair. The Appellant reasonably cross-examined all the witnesses. The Appellant properly understood the trial process and the charges preferred against him.  He was able to defend himself.  In this regard, this court finds that the Prosecution established the ingredients of defilement to the required standard of proof beyond reasonable doubt. The Appellant’s appeal against the conviction lacks merit. It is hereby dismissed.

The Appellant was under the Sexual Offences Act sentenced to serve fifteen (15) years imprisonment by dint of the provisions of Section 8 (4).  The court considered his mitigation. The Appellant maintained that he was framed. He denied the offence. The trial court sentenced the Appellant to serve the minimum custodial term of fifteen (15) years. The sentence was lawful.  This court thus sees no reasons to interfere with the sentence.  Appeal against sentence lacks merit. It is hereby dismissed. The sentence shall however take effect from 15^th August 2017 when the Appellant was arraigned before the trial court. He was in remand custody during the period of trial.

It is so ordered. 

DATED AT KITALE THIS 17^th DAY OF MARCH 2022.

L KIMARU

JUDGE