REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KITALE

CRIMINAL APPEAL NO. 91 OF 2019

(From original conviction and sentence in Sexual Offence No.  46 of 2018 of the

Chief Magistrate’s Court at Kitale delivered by Hon. M.I.G. Moranga SPM on 15/8/2019)

FELIX OCHIENG Alias ABOT........................................................................................APPELLANT

VERSUS

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

JUDGMENT

The Appellant Felix Otieno Ochieng alias Abot was charged with defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual offences Act.  The particulars of the offence were that on diverse dates between 1st December 2018 and 31^st July 2017 at [particulars withheld], Kipsongo, Trans Nzoia County, the Appellant caused his penis to penetrate the anus of C.O.O. a child aged 16 years. He was further charged with the offence of assault causing actual bodily harm contrary to Section 251 of the Penal Code.  The particulars of the offence were that on the 18^th of March 2018 at the same place, the Appellant unlawfully assaulted C.O.O thereby occasioning him actual bodily harm. When the Appellant was arraigned before the trial Magistrate’s court, he pleaded not guilty to the charge. After full trial, he was convicted as charged and sentenced to serve 15 years and one year respectively in respect of the two charges. The Appellant was aggrieved by his conviction and sentence, he has filed an appeal to this court.

In his Petition of appeal, the Appellant raised several grounds of appeal challenging his conviction and sentence. He was aggrieved that he had been convicted in a trial where he had not been supplied with witnesses’ statements. He faulted the trial magistrate for convicting him yet the prosecution had not established the charges preferred against him to the required standard of proof.  He was of the view that the evidence adduced was insufficient to secure his conviction. He noted that no forensic evidence such as photographic and documentary evidence were produced by the prosecution to establish his guilt. He faulted the trial court for failing to consider the fact that he was not medically examined before the guilty verdict was reached. He was aggrieved that his defence was not considered before he was convicted. In the premises therefore, he urged the court to allow the appeal, quash the conviction and set aside the custodial sentence that was imposed upon him.

During the hearing of the appeal, both the Appellant and Mr. Omooria for the State presented to court written submission in support of their respective opposing positions. Whereas the

Appellant urged the court to allow the appeal, the prosecution was of the view that it had established its case against the Appellant to the required standard of proof beyond any reasonable doubt. In the premises therefore, he urged the court to dismiss the appeal.

This being a first appeal, it’s the duty of this court to re-consider and re-evaluate the evidence adduced before the trial court so as to reach its own independent determination whether or not to uphold the conviction.  In doing so, this court is required to take into consideration 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 is whether the prosecution established the charges brought against the Appellant to the required standard of proof beyond any reasonable doubt.  

To prove the charge of defilement, the prosecution was required to establish three essential elements namely, penetration, the age of the victim and the identity of the perpetrator.  As regards age, the prosecution adduced evidence both from the mother of the complainant and dental records of the complainant which established that the complainant was 16 years old at the time of the alleged sexual assault.  The Appellant did not dispute the evidence that was adduced by the prosecution regarding this element of the charge. This court therefore holds that the prosecution established that the complainant was 16 years old at the time of the alleged sexual assault and therefore a child within the meaning of the term ascribed thereto under Section 2 of the Children Act.

As regards penetration, medical evidence adduced by the clinical officer who appeared before court (i.e. PW3   John Koima) was inconclusive.  On physical examination of the complainant, he noted that the anal area showed some indication of penetration. He however observed that the complainant had told him that he had repeatedly engaged in anal sex with the Appellant for about two years prior to the Appellant being charged with the offence.  The trial court heavily relied on the testimony of the complainant to reach her finding that there indeed was penetration. The evidence from the complainant’s teacher was contrary to the complainant’s testimony in court.  PW4 MCJ testified that the complainant went to see her and told her that he had engaged in anal sex with the Appellant and had formed a habit which he wanted to break. It was apparent that the teacher took it as deviant behaviour and not a case of sexual assault because she formed the impression that the complainant “willingly” participated in the sexual intercourse.

From the evidence adduced before court, it was apparent that in a fit of jealousy, the Appellant assaulted the complainant when he saw him with other boys.  According to the complainant, the Appellant assaulted him severally when he saw him with other boys. It was the last incident of 18^th March 2018 that led him to report the alleged incident to his school teacher and subsequently thereafter to the police. The Appellant denied ever sexually assaulting the Appellant.  The complainant’s mother who testified in court as PW2 did not believe that the complainant had been repeatedly sexually assaulted as claimed by the complainant. She stated that the complainant had not told her of such assault.  

The trial court’s reliance on the complainant’s testimony therefore, though acceptable under the proviso  of Section 124 of the Evidence Act,  i.e that it did not require corroboration, must have proper basis before an appellate court can consider that such evidence was watertight and free from the possibility of error. It did not escape this court’s notice that the complainant’s testimony, considered with the testimony of the other prosecution witnesses, appear either embellished or exaggerated. The medical evidence adduced did not support the complainant’s testimony that he had recently been sexually assaulted.  The medical evidence while noting that the complainant could have engaged in anal sex, did not support the prosecution’s case that there was a case of sexual assault. For instance, the complainant made a statement to his teachers and to the police that the Appellant had had anal sex with 18 other boys.  However, it was curious that none of these 18 other boys was called to testify before court in the case.  The Appellant was justifiably aggrieved that during his arrest, this aspect of the complainant’s allegation against him was given prominence by the press, both electronic and print.  This aspect of the complainant’s statement made prior to the Appellant’s arrest was not evaluated by the trial court.  The trial court did not also take into consideration that the complainant had given a completely different story to his teacher regarding the circumstances in which he had engaged in anal sex.  If the trial court had considered the complainant’s evidence in the entirety of the context that was adduced by other prosecution witnesses, it would clearly had reached the conclusion that the complainant was not possibly telling the whole truth and if so, his evidence could not be taken to be credible.

This court’s re-evaluation of this evidence regarding penetration leads to the conclusion that the prosecution had not proved penetration to the required standard of proof beyond any reasonable doubt. This court got the impression that the complainant was a troubled child who had social adjustment issues and may have created the story of his alleged sexual assault by the complainant to get the attention of the adults and thus the recognition that he so craved for.  The story that the complainant gave to the people who were closest to him, i.e his school teacher and his mother did not tally with the evidence that he gave before the court.  The trial court could not therefore have reached the determination that the complainant was telling the truth. This court reaches the verdict that reasonable doubt has been raised that the complainant was telling the whole truth.  That being the case, it is immaterial to consider the third element of the charge i.e the identity of the perpetrator. The Appellant, in law, is under no obligation to prove his innocence.  It is the duty of the prosecution to discharge its burden of proving the charge brought against the appellant to the required standard of proof.

In the premises therefore, this court finds merit with the Appellant’s appeal.  It is hereby allowed.  The Appellant’s conviction is quashed.  The sentence that was imposed upon him is set aside. He is ordered set at liberty forthwith and released from prison unless otherwise lawfully held.  It is so ordered.

DATED AT KITALE ON THIS 16TH DAY OF MARCH 2022.

L. KIMARU

JUDGE