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Juma v Republic (Criminal Appeal E030 of 2020) [2022] KEHC 9770 (KLR) (20 July 2022) (Judgment)
Neutral citation:
[2022] KEHC 9770 (KLR)
Republic of Kenya
Criminal Appeal E030 of 2020
RN Nyakundi, J
July 20, 2022
CORAM: Hon. Justice R. Nyakundi
The appellant in person
Mwangi for the State
Between
Ali Said Juma
Appellant
and
Republic
Respondent
(Appeal from Original Conviction and Sentence in Criminal Case No. 8 of 2018 of the Senior Resident Magistrate’s Court at Mariakani Law Court-S.K. Ngii, SRM dated 30th May, 2019)
Judgment
1.The Appellant was charged with Defilement contrary to Section 8(1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 22nd day of January, 2018 at [particulars withheld] Village, in Mwavumbo Location in Kinango Sub County within Kwale County, the Appellant intentionally caused his penis to penetrate the vagina of PSN a child aged 13 years old. The Appellant was charged with an alternative charge of committing an indecent Act with a child Contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
2.The particulars were that on the 22nd day of January, 2018 at [Particulars withheld] Village, Mwavumbo Location in Kinango Sub County within Kwale County, the Appellant intentionally touched the vagina of PSN a child aged 13 years with his penis.
3.Aggrieved by the sentence and the conviction of the trial court, the Appellant lodged an appeal on the following grounds:1)That the learned trial Magistrate erred in law and fact by failing to consider that the prosecution witnesses failed to discharge the burden of proof to their case as required by the law.2)That the Learned trial Magistrate erred in both Law and facts by failing to consider that the sentence imposed to the appellant was manifestly harsh and excessive in all the circumstances.3)That the Learned trial Magistrate erred in Law and facts by failing to adequately consider his defence.4).That the learned trial Magistrate erred in law by sentencing him to 20 years imprisonment without proper finding that the charge of defilement was not proved beyond reasonable doubt.5)That the learned trial magistrate erred both in law and facts by failing to consider that there were no cogent reasons to link I, the applicant to the commission of the alleged offence hence the conviction was against the merits of the entire case.
Background
4.PW1 FLB, the victim was sworn in after a voire dire examination. She informed the court that she was in class 7 at [Particulars withheld] School and that she was thirteen (13) years Old. That on the 22nd day of January, 2018 she came from school and was told by their servant that she was needed by the Appellant who was their neighbor at home. That he was in his house, she went and the Appellant told her to remove her clothes. She removed her clothes and the Appellant also removed his clothes. That the Appellant told her to have sexual intercourse with him.
5.She also told the court that after the incident she went back home and informed her sister C who is aged twelve (12) years. That her sister went and informed their elder brother who later went and informed their mother. That her mother sent her to the shop and when she returned, she found that her mother had summoned the Appellant and she was now questioning him. That she ran away to hide in a house which was under construction and slept there until the next morning.
6.She further told the court that she went home in the morning and found her father there. That her father took her to the police station, her mother and a police officer took her to Mariakani Hospital where she was examined and given medicine. That she returned to the police station after treatment, recorded a statement and was issued with a P3 Form which was filled at Mariakani Hospital.
7.She also told the court that she was born on the 9th day of July 2006 and she is 12 years as per her Copy of the Birth Certificate. She also identified the Accused in open court and said that the Appellant was their neighbor for about a year.
8.On cross examination, she stated that on the 22nd day of January the Appellant did a bad thing to her, that they had sexual intercourse. That on the material day, the neighbours and her parents were not at home. She also said that she found him with her mother when she came to the shop and that she ran away to hide in a nearby building which was under construction where she slept alone and that she was not defiled by another person there. She also said that she told her sister C about what had happened on that day.
9.Upon reexamination, she stated that the incident happened on the 22nd day of January, 2018 at the Appellant’s house.
10.PW2 KKN was the victim’s mother told the court on a date in January, 2018 she arrived home at about 7p.m from work. Her daughter C came to her bedroom and informed her that the victim had been given Kshs. 60/- by the Appellant and they had had sexual intercourse. She also told her that they had bought mangoes with the money and that the victim was bleeding from her private parts. That the incident had occurred on the same day.
11.She also stated that she called the brother to enquire about the incident who told her that he did not know about the incident. That the Appellant came and she questioned him about the matter and he admitted that he had defiled the victim and asked to be forgiven. She took the accused to the police station accompanied by his brother. That on that night the Victim slept away from home and only returned in the morning when she took her to Mariakani Police Station. She later took her to Mariakani Police Station where she was examined and treated. That the Appellant is well known to her and that he apologized and asked her to forgive him.
12.Upon cross examination, she said that it was C who informed her about the incident and that the Appellant had admitted to having defiled the victim. That he asked to be forgiven and he said that he had been tempted by satan. That she took him to the police on the same night but the victim had run away to hide.
13.She further said that the under pant of her daughter was stained in blood and that she had cleaned it. That the victim ran away from home when she found her interrogating the Appellant. That she went to look for her but did not find her and she only came back in the morning and it was not true that she was defiled at the place where she went to hide.
14.She also added that she only took her daughter for treatment at Mariakani Hospital and she did not conspire with the doctor to implicate him. That the doctor examined her daughter and confirmed that she had been defiled. She also confirmed that the Appellant admitted to having committed the offence and requested her to forgive him.
15.PW3 No. 101922 PC SOFIA attached to Mariakani Police Station told the court that she was handed over the file by PC Jedida who had since been transferred to Gathuri Police Station within Kilifi County. She though she is not the one who investigated the matter, she had read through the file when she took over the matter. That it was alleged that the complainant was 13 years when the incident took place and she had the birth certificate which shows that she was born on the 9th day of July, 2006.
16.That the victim was brought to the station by her parents in the company of the accused. That on the 9th day of July, 2016 the complainant was examined by a doctor and it was established that she had been defiled.
17.PW4 Barrington Charop a clinical officer from Mariakani Sub County Hospital. On the 29th day of January, 2018. The victim came in the company of her mother with a complaint of having been defiled. That upon examination, it was observed that her vaginal hymen was missing and she had a tear on the lower part of the vagina.
18.There was also a blood-stained discharge from her genitalia. The P3 Form was filled on the 30th day of January, 2018. He also presented Treatment Notes and laboratory Forms and a Birth Certificate showing that she was 13 years Old.
19.On cross examination, he confirmed that the complainant came to hospital on the 29th day of January, 2018 in the company of her mother. That the examination was independent and he was not aware that it was alleged in the charge sheet that the charge sheet that the incident took place on the 22nd day of January, 2018.
20.That it is true that the complainant had blood stained discharge on her genitalia.
21.At the close of the prosecution case, the trial court found that a prima facie case had been established and the Appellant was placed on his defence. The Appellant elected to give unsworn evidence and stated that on the 27th at about 7:00 pm three people invaded him and arrested him. That they did not disclose the reason for the arrest and they later took him to the station. That on the 4th day he was charged with the offence which he denied.
Analysis and Determination
22.This being a first appeal, this court has a duty to revisit the evidence that was before the trial court, re-evaluate and analyse it and come to its own conclusion. Further, the court has to bear in mind that unlike the trial court, it did not have the benefit of seeing the demeanor of the witnesses and the Appellant during the trial and can therefore only rely on the evidence that is on record. See Okeno v R (1972) EA 32, Eric Onyango Odeng’ v R (2014) eKLR.
23.I have considered the grounds of appeal, the respective submissions, and the record and the only issue for determination is whether the prosecution proved its case against the Appellant.
24.In order for the offence of defilement to be proved, the prosecution must prove all the three elements of defilement being the age of the Complainant, proof of penetration and the positive identification of the perpetrator. See Charles Wamukoya Karani v Republic Criminal Appeal No.72 of 2013.
25.It is trite that under the Sexual Offences Act with regard to defilement age apparently is one of the critical elements to be proved beyond reasonable doubt by the prosecution because of its application in appropriating the correct sentence for the offence. The prosecution must give proper and sufficient evidence in respect to age of the complainant. Such evidence is then considered along with other available material in support of the charge capable of discharging the burden of proof under Section 107(1) of the Evidence Act.
26.Additionally, on the element of age, it is trite that in sexual offences the age of the complainant is relevant for two purposes. Firstly, it is meant to prove that the complainant was below 18 years establishing the offence of defilement and secondly it establishes the age of the complainant for purposes of sentencing. See Moses Nato Rapheal v Republic (2015) eKLR.
27.It has been held that the age of the victim in sexual offences can also be proved by the direct evidence of parents or guardian or by observation by the court. In Thomas Mwambu Wenyi v Republic (2017) eKLR cited with approval Francis Omuromi v Uganda, Court of Appeal Criminal Appeal No. 2 of 2000 which held that:
28.In Richard Wahome Chege v Republic (2014) e KLR the Court of Appeal sitting in Nyeri pronounced itself thus:
29.In the instant case, proof of age of the complainant was given by the victim as well as the mother.PW1 stated that she was Thirteen (13) years at the time of giving her testimony and at the time of committing the offence. Similarly, PW2 who is the victim’s mother informed the court that the victim was thirteen years old. There was no dispute as to the age of the complainant and I hold that it was satisfactorily proved.
30.On the element of penetration, Section 2 of the Sexual Offences Act defines penetration as:
31.The prosecution has a duty to establish that the Appellant defiled the victim. In determining penetration, courts mainly rely on the evidence of the complainant which is corroborated by medical evidence as was held in Dominic Kibet Mwareng v Republic (2013) EKLR where the court stated that:
32.In this case, the victim clearly recounted in court how on the material day she went home and was told by the servant that she was needed by the Appellant who was their neighbor, she went to his house, he told her to remove her clothes and they had sexual intercourse with him. She further stated that after the incident, she went back home and informed her sister.
33.Having assessed the evidence on record, the victim clearly recounted that the said act of penetration was committed by the Appellant. It is common place that penetration can be proved by the evidence of PW1 alone as provided by Section 124 of the Evidence Act which provides that:
34.This position was succinctly held by the Court of Appeal in Williamson Sowa Mbwanga v Republic (2016) eKLR, where it stated that:
35.On identification, where identification is based on Recognition, this is where the complainant knows the accused and it has been held to be more reliable than identification of a stranger. The court of Appeal in Francis Muchiri Joseph v Republic (2014) eKLR held that:
36.In the instant case, the victim informed the court that the Appellant was their neighbor and on the material day, he called her told her to remove her clothes and had sexual intercourse with her. According to (PW1) evidence the period of observation of the Appellant was over long period of time to support recognition of the Appellant positively and to this extent this is not in contention.
37.Having looked at the above elements, the only question is whether the Appellant defiled PW1. I have weighed the evidence of the prosecution against that of the Appellant. From the evidence of the Appellant, he did not disapprove that he did not engage in sexual intercourse with the complainant. Though the case on identification was solely that of the complainant, I find no danger for the trial court to have convicted the Appellant as such on a single identifying witness in the circumstances of this case.
38.As matters stand, all essential element of the crime, which is the act constituting or linking the appellant to the circumstances of the defilement was pleaded in the charge sheet and proved beyond reasonable doubt.
39.The doctrine of proof beyond reasonable doubt was discussed in Woolmington versus DPP 1935 AC 462 and also Miller versus Minister of Pensions 1942 AC where Lord Denning stated on the phrase of beyond reasonable doubt as follows:
40.In the premises this appeal lacks merit on both facts and Law. It is hereby dismissed. The conviction is hereby affirmed.
41Accordingly, the appeal is dismissed.
42.Orders accordingly.
DATED, SIGNED AND DELIVERED AT ELDORET VIRTUALLY THIS 20TH DAY OF JULY 2022.............................R. NYAKUNDIJUDGEIn the presence of:-1. Mr Mwangi for the state2. Appellant -present
