REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITALE

CRIMINAL APPEAL NO. 88 OF 2019

(Appeal arising out of conviction and sentence of Hon. M. Nyang’ara Osoro (Resident Magistrate)

in Kitale Chief Magistrate’s Court Criminal Case (S.O) No. 18 of 2019

delivered on the 24^th day of July 2019)

OBADIA MUKAISI KAKAI..........................................................................................APPELLANT

-VERSUS-

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

JUDGMENT

The Appellant, OBADIA MUKAISI KAKAI, was charged with the offence of defilement of a child contrary to Section 8 (1) as read together with Section 8 (3) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between the 25^th day of December 2018 and the 14^th day of January 2019 at Kipsomba area in Kolongolo Location within Trans-Nzoia County, the Appellant intentionally caused his penis to penetrate into the vagina of S.N.S, a child aged fifteen (15) 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 diverse dates between the 25^th day of December 2018 and the 14^th day of January 2019 at Kipsomba area in Kolongolo Location within Trans-Nzoia County, the Appellant intentionally caused the contact between his penis and the vagina of S.N.S, a child aged fifteen (15) years. When the Appellant was arraigned in court, he pleaded not guilty. After full trial, the Appellant was convicted on the main charge and sentenced to serve fifteen (15) years imprisonment.

The Appellant is aggrieved by his conviction and sentence. In his petition of appeal, the Appellant was aggrieved that the charge sheet was at a variance with the OB reference number hence defective.  He questioned the credibility of the witnesses citing contradictions in their evidence. He challenged the validity of PW3’s document. He lamented that the Prosecution violated the provisions of Section 150 of the Criminal Procedure Code. 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 their written submissions in support of their respective rival positions. The Appellant submitted that the Prosecution failed to establish the all necessary elements of the charge preferred against him. He stated that the trial process was a nullity because it was based on a defective charge.   He fortified this submission by stating that the words ‘unlawful’ and ‘illegal’ were omitted from the drawn charge sheet. Consequently, he submitted that no offence was committed as alleged.  He stated that the break of the hymen was not a conclusive proof of penetration. He stated that more witnesses ought to have been called to eliminate any iota of doubt in that regard.  He submitted that  voire dire was not conducted and thus questioned the credibility of the trial process. He faulted the trial court for failing to take into consideration his defence before arriving at the impugned judgment.                             

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.  On the variation between the OB reference number and the charge sheet, Learned Prosecutor submitted that the same is curable and not fatal to the prosecution case. He submitted that any contradictions were minor and did not affect credibility of the witnesses. He submitted that no application under Section 150 of the Criminal Procedure Code was made before the trial court to support the Appellant’s claim that he was denied the opportunity to recall witnesses.  He further relied on Section 124 of the Evidence Act to support  the assertion that in sexual offences cases the evidence of the complainant can be  relied onto prove a case if the  witness  is  truthful. He urged the court to uphold the sentence of the trial court as it was legal.

The facts established by the Prosecution and giving rise to the charges are recorded as follows; PW1, S.N.S the Complainant testified that she was a Form one (1) student at Nasianda Secondary School.  She was born on 11^th May 2003. In the morning hours of 25^th December 2018, PW1 rode on the Appellant’s motorcycle after church.  She was going home.   She did not know him prior to that day.  Instead of taking her to her destination, he detoured and took her to his home where he locked the Complainant there up to 14^th January 2019.   During this period, the Appellant would leave her in his home and join her in the evenings.    She stated that he threatened her in the event she screamed.  She was scared into submission.   Although she resisted his advances, the Appellant went ahead and forcefully undressed her before sexually assaulting her.       

 PW2, PRISCILLA NANJALA MAKHOKA, the complainant’s mother, was disturbed when the complainant did not return home. She was later  informed that her daughter (the Complainant) was staying at Mama Bryan’s (PW3, VIOLET NAKUMICHA) house.   PW3 who identified the Appellant as her neighbour of five (5) years informed PW2 that the Complainant was actually at the Appellant’s residence.   She had received this information from her daughters. They both proceeded to the Appellant’s house at 3 p.m. on 14^th January 2019.  The found the complainant in the Appellant’s house.

Meanwhile PW4, ALEX WAKABET, the Assistant Chief of the area received a call on 14^th January 2019 from WILSON MUHANDIA that a student had been kept by the Appellant in his house from 25^th December 2018.  The village elder then arrested and brought the Appellant to him. When the Complainant was also brought to PW4, both the Complainant and the Appellant admitted that they had cohabited together during that period.

The Appellant and the Complainant were taken to Kolongolo Police station where they were detained.  PW5 SENIOR SERGEANT SHADRACK KARANI received them on that 14^th night of January 2019. The Appellant was then transferred Endebess Police station where the present charges were preferred against him. He produced the Complainant’s Birth Notification form as Prosecution Exhibit 1. PW5 further testified that it was a common trend in the area that motorcycle operators are cohabiting with minors.

The Complainant was taken to Kwanza Hospital on 15^th January 2019 and later on Endebess Police Station where she recorded her testimony.  At the hospital, PW6, LILLIAN AKINYI, a clinical officer, testified that the Complainant’s abdomen on examination, was soft.  The high vaginal swab (HVS) had epithelial cells.  The presence of epithelial cells was proof that there was vaginal contact or a fungal infection. Her hymen (which she confirmed could only be broken sexually) was torn and old looking. Her conclusion was that there was sexual intercourse. She then treated the Complainant. PW6 filled the P3 form two days later. She produced the treatment notes and P3 form as Prosecution Exhibit 2 and Prosecution Exhibit 3 respectively.

The Appellant was placed on his defence.   It was his sworn testimony that on the morning 14^th January 2019, he attended driving school until 1:00 p.m. He then delivered a client to the chief’s office who had informed him that he wanted to pick items from the office.   His client asked him to assist him carry the items. He proceeded to enter the chief’s office where he found a crowd. He was confronted and apprehended. He was then asked if he knew the Complainant who was there as well. He denied knowledge of her.  He was then handcuffed and escorted to Kolongolo Police Patrol Base. The following day, he was taken to Endebess Police Station and was arraigned in court on 17^th January 2019 on the present charge.  He denied the charge or even committing the offence.  He accused the prosecution witnesses of committing perjury.

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 beyond any reasonable doubt.

1. Age of the Complainant

2. Penetration

3. Identification of the perpetrator

On the Complainant’s age, PW1 testified that she was born on 11^th May 2003. PW5, produced the Complainant’s Birth Notification form (Prosecution Exhibit 1) to establish this fact.   This court thus finds that the age of the complainant was ascertained by the Prosecution to the required standard of proof.  The complainant was therefore aged Fifteen (15) years at the material time.   She was therefore 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 sometime in January 2019, the Appellant removed her trouser, undressed her forcefully and sexually assaulted her.   On being taken to Hospital, her abdomen was on examination,   “soft”.   The high vaginal swab (HVS) had epithelial cells. The presence of epithelial cells was proof that there was vaginal contact or a fungal infection. Her hymen (which PW6 confirmed could only be broken sexually) was torn and old looking.  PW6’s conclusion was that she was defiled. Relying further on Prosecution Exhibits 2 and 3, and the complainant’s own testimony, this court concludes that penetration was proved to the required standard of proof.

On the identification of the perpetrator, PW1 testified that the Appellant took on his motorcycle on the morning hours of 25^th December 2018 to his house where she stayed with him until early January 2019.   During this period, the Appellant would leave her in his home and later join her in the evening. PW3 testified that she had been the Appellant’s neighbour for five (5) years. She informed PW2 that PW1 was being kept at the Appellant’s house. PW2 and PW3 found PW1 at the Appellant’s house at 3 p.m. on 14^th January 2019.  The Appellant did not give an explanation why the complainant was found in house.  He was thus positively identified as the perpetrator. This court sees no reasons to interfere with this finding.

What emerged from the evidence is the nature of the relationship between the Complainant and the Appellant.  It appeared to have been “consensual”. PW3 testified that she was informed by her daughter that the Appellant and the Complainant were living together as friends. In the presence of PW4, the Complainant and the Appellant admitted to having cohabited together for the period the Complainant was not at her parent’s house. PW5 further added that it was a common trend in the area for motorcycle operators to cohabit with girls of the complainant’s age.  At the second statement in part II, Section A of the P3 form, it is recorded as follows:

“The girl (15 years) reports to have visited his boyfriend on 25/12/18 and since they were living together unfortunately they are not aware that it’s a crime till 14/1/2019.”

It was evident that the Complainant was in a “consensual” relationship with the Appellant. However, a child under the Sexual Offences Act cannot consent to sexual intercourse. 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 (3). The court considered his mitigation and the probation report. In his mitigation, the Appellant sought for leniency. The Court sentenced the Appellant to serve fifteen (15) years down from the statutory minimum of twenty (20) years.  In view of the circumstances of this case, this court shall interfere with the sentence.   The Appellant and the complainant appear to have been in a sexual relationship though not considered legal under the Sexual Offences Act.   Consequently, the Appellant’s sentence is set aside and substituted with a custodial sentence of ten (10) years imprisonment.  The sentence shall be served from 17^th January 2019 when the Appellant was arraigned before court since he was not released on bond. It is so ordered. 

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

L. KIMARU

JUDGE