REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA

CRIMINAL APPEAL NO. E005 OF 2021

MAHAT GARAT HUSSEIN.....................APPELLANT

VERSUS

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

JUDGEMENT

1. The appellant herein was charged with the offence of Defilement contrary to Section 8 (1) (3) of the Sexual Offences Act No. 3 of 2016.

The particulars of the offence were that on 24^th July 2020 at Makoro Location in Wajir East Sub County within Wajir County, he intentionally caused his penis to penetrate the anus of HM a child aged 12 years.

2. The matter proceeded to full trial where the Appellant was convicted, and sentenced to twenty years (20) imprisonment for the said offence.

3. Being aggrieved by the judgement the Appellant filed this appeal  summarized as follows;

a. That the trial Magistrate erred in law and fact by convicting the appellant without considering that the case of the prosecution was not proved beyond reasonable doubt.

b. The trial Magistrate erred in law by issuing an excessive sentence without taking due regard that the appellant was a first-time offender.

4. Both parties canvassed the appeal through written submissions as follows; -

APPELLANT’S SUBMISSIONS

There were inconsistencies in the testimony of PW1 and PW2 specifically as to how the offence occurred and the date of the offence (24/7/2020 & 12/7/2020). The appellant also urged the court to consider the nature of the offence and the fact that PW1 was a few meters away at the time the offence is alleged to have occurred.

5. He elicited doubt in the evidence of PW3; the clinical officer.

Further he urged that PW4: the investigating officer had conceded that they had not found anything at the scene to suggest that the alleged offence occurred. He also submitted that PW2’s disorder had affected his credibility as a witness.

THE RESPONDENT’S SUBMISSIONS

The Respondent submitted that all the ingredients of the offence had been proved by the prosecution.

ANALYSIS AND DETERMINATION

6. This being the first appeal, the court must re-consider the evidence afresh, evaluate and analyze the same and make its conclusion. In the often-cited case of Okeno v Republic [1972] EA 32 at 36 the East Africa Court of Appeal stated on the duty of the Court on a first appeal:

“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.” 

7. PW1 FS, mother to the complainant testified that she was at home on 24^TH July, 2020 when the Complainant went for a call of nature in the bushes. He returned after 30 minutes crying and informed her that he had been molested by the accused. She checked his buttocks and noted the same had an injury. She took him to Wajir Police Station.

8. In cross-examination she stated that the accused’s family are their neighbours. Further that there was a prior defilement incident of the minor before this case.

9. PW2 HM, the complainant herein testified that on 12^th July 2020 at 2 p.m. while home he was called by the accused who was on the road passing, when the Appellant assaulted him; by hitting him on the neck, and thereafter putting his penis in his anus. After the incident he informed his mother PW1 who took him to the police station where he was interviewed and later taken to the hospital.

10. In cross-examination he informed the court that at the time of the incident the accused wore boots and long hair (the court noted that the accused had long hair).

11. PW3 Thomas Nyagaka presented the P3 form on behalf of Abdullahi Adan. He informed the court that upon examination of PW2 it was found that his trouser was wet with deposits on the back of the trouser corresponding to the anal area. That there was loose anal sphincter on examination that was indicative of possible rectal penetration; lacerations and semen deposits noted on the anal cavity mixed with fecal matter; and the lacerations were representative of forceful penetration and friction.

Further, he told the court on examined he found the minor he had a mental condition known as “Attention Deficiency High Activity Disorder” (ADHD).

He also examined the appellant herein and presented his P3 report.

12. In cross-examination he testified that the examination was done one day after the incident. That no abrasion was noted. He however stated that he could not conclude that there was no penetration since the epithetical cells were missing. He also noted that the results of the rectal swap indicated that there were no spermatozoa but the lack of spermatozoa could not lead him to conclude that there was no penetration.

As to the complainant’s health, he stated that the complainant cannot concentrate on one activity for long. However, the complainant was intelligent and children with that disorder do not have memory lapses.

13. PW4 PC Evans Otieno attached to Wajir Police station confirmed taking the complainant to Wajir County Hospital on 25^th July 2020, where the doctor examined him and found that there was penetration. They visited the complainant’s home on 28^TH July 2020. The victim and the accused are neighbours. The scene was a bush 50 meters from the road. They found nothing at the scene.

14. Upon close of the Prosecution case the Appellant was found to have a case to answer and placed on his defence.

DW1, Mahat Garat Hussein, the appellant herein testified that on the material date the 24^th of July 2020 he went to Wajir Town till noon, thereafter he stayed at home with his father till 3:30 p.m when he left to watch football. Three days later he was accused of defiling the minor. He confirmed knowing the complainant as his neighbour stating that they live 20 meters apart.

He also informed the court that they have a land Dispute between the family of the complainant and his. Further it is not the first time the complainant is alleged to have been defiled; the first time the allegation was made it was reported to Wajir Police station and referred to the Children’s Department.

15. DW2 father to the accused, testified that on the material date the appellant went to work but never came back till the next day. That PW1 had previously alleged that the appellant had defiled the complainant but the appellant was never charged. He also told the court that he was at home on 28^th July 2020 when PW1 came with the police officers.

16. The ingredients forming the offence of defilement are; the age of the complainant, proof of penetration and positive identification of the assailant.

17. PW3 presented a P3 report and a lab test assessing the age of the complainant to be 12 years old. The Trial Court noted the age of the complainant and at the time he gave his evidence it conducted voire dire examination. PW1 confirmed that the complainant was a minor. The appellant did not dispute this fact.

18. In the case of Richard Wahome Chege v Republic Criminal Appeal No 61 of 2014, the Court of Appeal held as follows while considering the question of proof of age of the victim:

“On the contention that the age of the complainant was not established, it is our considered view that age is not proved primarily by production of a birth certificate. PW2 the mother of the complainant testified that the complainant was 10 years old. What better evidence can one get than that of the mother who gave birth? It is our considered view that the age of the complainant was not only proved by PW2 but supportive evidence was given by PW3 [the doctor] who examined the complainant, and the complainant herself”

Therefore, the court finds that the age of the complainant was proved beyond reasonable doubt.

19. The next element is whether there was penetration. Section 2 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”.

PW3, the clinical officer was categorical that there was loose anal sphincter on examination that was indicative of possible rectal penetration. On cross-examination, he restated that despite there being no abrasion and traces of spermatozoa he could not conclude that there was no penetration. He also noted that the lacerations were representative of forceful penetration and friction. The element of penetration was therefore proved by the prosecution beyond reasonable doubt.

20. On whether the appellant was positively identified as the assailant. I do find that the evidence of PW2 was clear and unshaken. He positively identified the appellant. PW3 corroborated the credibility of his testimony through the presentation of the mental assessment report. I have also considered the evidence of the appellant in his defence. As to the claim of a land dispute this was raised by the appellant during his defence, he never sought to cross-examine PW1 on the same. It appeared to be an afterthought.

Further, the evidence of the appellant and DW2 was also contradictory. Whereas the appellant stated that he was at home with DW2, DW2 stated that he did not see the appellant at home on the material day.

21. Despite the difference of the date cited by the complainant, his evidence and that of his mother was consistent. The offence occurred at 2:00 p.m. and the appellant being a neighbour was known to the complainant. The court finds the identification was positive.

22. On Sentence, Section 8 (1) & (3) of the Sexual Offences Act Provides that;

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

(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”

23. The court has considered the circumstances of this case and the provisions of the Act.  Further sentencing is discretionary and the Appellate Court can only interfere if the sentence is too harsh as to result into an injustice or it is illegal. The Court finds the sentence was within the law and proper and does not see the need to disturb the same.

24. The upshot that this court finds the Appeal to lacks merit and the same is hereby dismissed.

DATED SIGNED AND DELIVERED IN GARISSA THIS 3^rd DAY OF MARCH 2022

ALI-ARONI

JUDGE