Syanda v Republic (Criminal Appeal E005 of 2020)  KEHC 11499 (KLR) (17 May 2022) (Judgment)
Neutral citation:  KEHC 11499 (KLR)
Republic of Kenya
Criminal Appeal E005 of 2020
RK Limo, J
May 17, 2022
John Kyalo Syanda
(An appeal vide Sexual Offence No. 14 of 2018 in the PM’s Court at Kyuso Law Courts)
1.John Kyalo Syanda, the appellant herein was charged with the offence of defilement contrary to Section 8(1) (3) of the Sexual Offence Act No. 3 of 2006 vide Kyuso Principal Magistrate’s court Sexual Offence Case No. 14 of 2018. The particulars of the charge were that on 20th December, 2018 at Kyuso Town within Kitui County he intentionally caused his penis to penetrate the vagina of (name withheld) a child aged 14 years.
2.The appellant denied committing the offence when he was presented that court but after trial he was found guilty and convicted.
3.A brief summary of the case presented to the trial court shows that the complainant (PW1) had gone to collect her leaving certificate from her former primary school namely [Particulars Withheld] Academy and on her way back home she sought for some means of transport to go back home and decided to take a boda boda.
4.She testified that the accused, a boda boda operator at Katse market offered to take her home after agreeing on a fee. The complainant boarded the appellant’s motorbike but instead of taking her home, the appellant took her to Kyuso Town where he defiled her.
5.The complainant testified that the following day after the ordeal, the appellant left her stranded at a hotel known as Chondo Bar and Restaurant where a hotel worker assisted her before calling the police.
6.The evidence of the complainant was corroborated by a watchman at the hotel known as Tingo Muthui Mwasya (PW2). He testified that he booked the appellant on 20.12.2018 to one of the rooms at the hotel and that at the time he did not know that the appellant had a girl with him. He testified that the following day he was summoned back to the hotel where he was told to confirm if he had booked the appellant to one of the rooms which he confirmed.
7.PC Lagange Masha Edward (PW3) also testified that he was at Kyuso Town on 21.12.2018 at around 2 PM when he was alerted about the presence of a stranded girl. The officer stated that he was with CPL Tanui (PW4) and that upon interrogating the girl they got information that a boda boda operator had taken her to Kyuso Town the previous day and defiled her before abandoning her in the morning of that day (21.12.2018). The officer testified that they went to the hotel and interrogated the watchman (PW2) and got information that the appellant had actually booked a room at Chonjo Bar and Restaurant where the incident took place.
8.CPL Samson Tanui (PW4) corroborated the evidence of PW3 and tendered a receipt of Kshs. 250 used to book the room as P Ex 1. He also tendered a lesso (P Ex 2) which the hotel worker has assisted the victim to cover herself as her dress which was also tendered as P Ex3 was blood stained. The officer also tendered the appellant Identity Card No. that had been used to book the room and the Identity Card No. matched the Identity Card No. in the receipt used to book the room (P Ex1). The officer also tendered the phone and sim card with serial line No. 8925402106 as P Ex 5.
9.Dr. Stephen Musyoka Koli (PW5) testified on behalf of his colleague Dr. Daniel Misiani who was away in India for further studies. The medical evidence tendered were: -a.Treatment Notes (P Ex 7a)b.P3 Form –P Ex 7(b)The medical evidence tendered indicated that the victim was in her menses but the impression made by the doctor was that penetration was positive because of inflammation and reddening of the labia majora and minora. The doctor also noted that the hymen was perforated which indicated that there was penetration.
10.When placed on his defence, the appellant conceded that he had taken the complainant to Kyuso Town that evening and that the same was done at her request to be taken there. He also conceded that he booked a room at Kyuso Town using his Identity Card. He however, denied defiling her insisting that his motorbike broke down when they reached Kyuso Town and that is why he booked a room for the girl because she could not travel back home at night. He testified that he left Kyuso Town at 10PM and arrived at his house at around 11PM. He further testified that the following day he was arrested at Mumoni and later escorted to Kyuso Police Station.
11.The trial court evaluated the evidence and found that the prosecution’s case had been proved beyond doubt and on that basis convicted the appellant and sentenced him to serve 15 years’ imprisonment.
12.The appellant felt aggrieved and filed this appeal raising the following summarized grounds namely: -i.That the trial magistrate was biased against him.ii.That the trial magistrate erred by relying on a p3 which was at variance with the alleged offence.iii.That penetration was not conclusively proved.iv.That the trial magistrate misdirected herself on the burden of proof.v.That the trial court erred by holding that the complainant was credible and not re-evaluating the ingredients of defilement.vi.That the trial magistrate considered irrelevant factors.vii.That the prosecution did not prove its case beyond doubt.
13.The appellant also with leave of this court raised the following additional grounds.a.That the prosecution did not prove its case and the trial court did not make a specific finding on that issue.b.That the trial court erred by not conducting voire dire examination on the complainant.c.That the provision of Section 36 and 150 of Criminal Procedure Code were not complied with.d.That the trial court misdirected itself by not ruling out the question of mistaken identity.e.That the provisions of Section 333 (2) was not factored in.f.That the trial court relied on contradictory and inconsistent evidence.g.That the proceedings were irregular, and that the conviction was not safe.
14.In his written submissions the appellant reiterates that the trial magistrate was duty bound to make a finding on whether the prosecution proved its case to the required standard. He contends that penetration was not proved. He points out that the complainant had her menses and attributes the presence of blood to that condition.
15.He further submits that no spermatozoa were seen and that the age of the injuries noted on the complaint’s private part were not established. He contends that the absence of hymen was not in itself sufficient prove of defilement and points out that other activities can cause the hymen to break adding that activities such as horse riding, bicycle riding and masturbation can cause the hymen to break.
16.He submits that he was not found at the scene of crime but his home. He further submits that the lady who issued the receipt known as Syombua should have been called to testify.
17.Finally, the appellant submits that the period he served in custody should have been considered.
18.The Respondent through the Office of the Director of Public Prosecution for the record did not file any opposition to this appeal. I am however bound to determine this appeal notwithstanding that it is unopposed. The Office of the Director of Public Prosecution should however strive to take their responsibilities well because they are required to assist this court dispense justice. Having said that I will not consider this appeal.
19.As a first appellate court this court is required to re-evaluate the evidence tendered at the trial court with a view to reaching own conclusion.
20.This appeal has raised two main issues mainly: -i.Whether the appellant was identified.ii.Whether the age of the complainant was establishediii.Whether the prosecution’s case established and proved penetration.iv.Whether this appeal is properly before court.
i – Whether the appellant was properly identified.
21.The complainant (PW1) gave a clear narrative of what happened to her after she sought to travel back home using a boda boda. She told the trial court that she knew the appellant well prior to the date of the incident and that could explain why she picked him out at Katse market stage to take home. Her evidence was well corroborated by PW2 a watchman at Chonjo Bar and Restaurant at Kyuso Town. He confirmed that he booked the appellant at the hotel room where the complainant was defiled. The receipt book from the hotel was tendered as P Ex 1 and the appellant’s Identity Card used to book the room as P Ex 4 by PC Tanui (PW4). The appellant himself has admitted that he actually took the complainant to Kyuso Town and that his motorbike broke down forcing him to book a room at Kyuso Town for the girl. That in my view puts the question of identification to rest. He was positively identified and that issue was proved beyond doubt and the trial court was correct to make that conclusion it did regarding identification.
(ii) Age of the complainant.
22.The trial court found that the age of the victim was well established to 14 years through production of birth certificate P Ex 10. It is however apparent the birth certificate was tendered by a Police Officer PCW Eunice Kaburu (PW6) who was also the Investigating Officer. The police officer was not an expert within the meaning of Section 48 of the Evidence Act and the question of age assessment requires an opinion of an expert as clearly stipulated under the above cited section. The birth certificate as such was rendered hearsay and inadmissible in Evidence. Luckily for the prosecution, the evidence of Dr. Stephen Musyoka (PW5) covered the aspect of age because the P3 form tendered as P Ex7(b) clearly indicated that the minor was 14 years old. That evidence corroborated the evidence of the complainant who stated that she was 14 years old and in Form 1. Her evidence was quite consistent with medical opinion of the doctor who examined her and on that basis, I find that the age of the complainant was well established and proved to be 14 years at the time of the incident.
(iii) Whether penetration was proved to the required standard.
23.The appellant has contended that the question of penetration was not well proven considering that the presence of blood stains found on the complainant’s clothing was perhaps due to her menses.It is true that the medical report tendered by PW5 indicated that the girl was having her monthly periods at the time but the doctor clearly pointed out that the perforation of the hymen and inflammation and redness or swelling of the vulva was not caused by the menses but was evidence of penetration.The medical evidence corroborated well the evidence of the minor who gave a credible narrative of how the plan to defile her was well executed by the appellant. He took her and diverted from the route taking her home and instead headed to Kyuso Town with an intention to defile her and executed the plan after reaching Kyuso before leaving the girl stranded the following day. The fact that he was arrested at his home and not at the hotel does not mean that he never committed the offence. He had the opportunity and chance to do so the previous night prior to his arrest. Had it not been the commendable job done by the hotel staff to help the victim and report the incident to the police, the appellant may have gotten away with the crime. I am satisfied that the evidence presented to the trial court with respect to penetration was sufficient to prove that the offence of defilement was committed. The appellant cannot hide behind the fact that the girl was in her menses. In my considered view the evidence presented to the trial court by the prosecution established and proved all the ingredients of the offence upon which the appellant was charged and convicted.Contrary to the appellant’s assertions, his conviction was quite safe and well founded in view of the overwhelming evidence tendered by the prosecution.
(iv) Whether the appeal was properly filed
24.This court admitted this appeal for hearing on 3.3.2021 and heard it through written submissions. It has however come to the attention of this court that when the appeal was filed, the Registry Staff in-avertedly failed to realize that the appeal was out of time and there was no leave obtained to enlarge time within which to file the appeal. The judgement appealed from was delivered on 12th October, 2020 and going by the provision of Section 349 of Criminal Procedure Code, the appellant was required to file his appeal by 28th October 2020. This appeal was filed on 12th November 2020 which was 30 days after judgement which was delivered way out of time Section 349 Criminal Procedure Code Cap 75 provides:The Court in Kennedy Maina vs Republic  eKLR opined as follows;
25.The appellant when filing this appeal included grounds showing reasons for the delay in filing the appeal but that was not sufficient. He ought to have moved this court for leave. In the absence of leave, the appeal is rendered incompetent and is liable to be struck out.
26.This court however has decided to determine this matter on merit due to the fact that the issue of filing the appeal out of time was not to the attention of the appellant on time because had the same been done he would have sought leave. So to save on time and for the interest of substantive justice, this court decided to determine this appeal on merit and I have fully considered this appeal on its merit. Having done so I find no merit in this appeal. The conviction was well founded.
27.On sentence, the appellant has asked this court to consider time spent in custody. I have perused through the record and found that the appellant was granted bond during trial and only had his bond canceled on 1.4.2020 after absconding. He was in custody from April to 12th October 2020 when he was convicted. That was a period of 5 months. The period is short but under the provisions of Sections 333(2) of Criminal Procedure Code the appellant is entitled to have the period factored in. The sentence meted out of 15 years shall be lessened by 5 months which means he will serve 14 years 7 months from 12.10.2020.In the upshot this appeal on conviction is disallowed for the aforestated reasons. The sentence of 15 years meted out did not factor in the period of 5 months the appellant spent in custody awaiting trial as provided under Section 333(2) of the Criminal Procedure Code. The sentence is therefore set aside and in its place the appellant shall spend 14 years 7 months in jail to run from 12.10.2020.
DATED, SIGNED AND DELIVERED AT KITUI THIS 17TH DAY OF MAY, 2022.HON. JUSTICE R.K. LIMOJUDGE