Criminal Appeal 3 of 2019

Case Metadata
Case Number:	Criminal Appeal 3 of 2019
Parties:	Nduma v Republic
Date Delivered:	19 Oct 2022
Case Class:
Court:	High Court at Nairobi (Milimani Law Courts)
Case Action:	Judgment
Judge(s):	Lilian Nabwire Mutende
Citation:	Nduma v Republic (Criminal Appeal 3 of 2019) [2022] KEHC 14276 (KLR) (Crim) (19 October 2022) (Judgment)
Court Division:	Criminal
County:	Nairobi
Disclaimer:	The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Nduma v Republic (Criminal Appeal 3 of 2019) [2022] KEHC 14276 (KLR) (Crim) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14276 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal 3 of 2019

LN Mutende, J

October 19, 2022

Between

Peter Kibut Nduma

Appellant

and

Republic

Respondent

(Appeal against the original conviction and sentence in Sexual Offences Case No. 5820 of 2014 at the Chief Magistrates’ Court Makadara by Hon. E. Kanyiri - SRM. on 20th August 2018)

Judgment

1.Peter Kibuti Nduma, the Appellant was charged with the offence of defilement contrary Section 8(1) (3) of the Sexual Offences Act No. 3 of 2006. Particulars being that on 5^th day of December 2014 at [particulars witheld] in Nairobi within Nairobi County, he intentionally caused his penis to penetrate the vagina of VW a child aged 17 years.

2.In the alternative, he faced a charge of committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. Particulars being that on 5^th day of December 2014 at [particulars witheld] in Nairobi within Nairobi County he intentionally touched the vagina of VW a child aged 17 years with his penis.

3.It was the Prosecution’s case that on the 5^th December, 2014 the appellant took the complainant to his house, asked her to remove her clothes and lie on the mattress. He proceeded to desecrate her purity and while in the process of the act PW2 JIN, his biological sister peeped through an aperture on the wall of the house and saw both of them naked on the mattress. The appellant was on top of the complainant. Lights were on in the house which enabled PW2 to see them. She knocked the door and the complainant came out of the house while naked while her brother, the appellant, stood inside dressed in a red underwear.

4.The parents of the complainant were informed and they sought medical assistance. She was taken to the MSF Sexual Violence Recovery Centre where it was found that she was retarded/mentally challenged and had a tear at the posterior fourchette. Subsequently she was examined by PW4 Dr. Kizzie Shako who found her having sustained a tear on the hymen and there was tenderness on the fourchette. The appellant was also examined by PW5 Dr. Maundu on 8^th December, 2014, and, he had a normal genetalia. The appellant was arrested and taken to the Police Post on the same night but was handed over to the Kasarani Police Station on 6^th December, 2017. PW7 No. 91213 P.C. Peris Indeche of Kasarani Police Station investigated the case and caused the appellant to be charged.

5.Upon being placed on his defence the appellant stated that he had travelled to Homabay and when he returned, he slept. At about 8.30 pm, his sister went to his house with the complainant and asked him to take them to hospital. They went and found the Doctor at the hospital who was the minor’s father. It was his testimony that he only knew the complainant and her mother who lived on the same plot with his sister but he did not know her father, therefore, he met him for the first time.

6.That his sister told the complainant’s father that he (appellant) had been found with the complainant inside his house. The complainant was examined as a result and he was arrested and taken to the Chief’s Office. Later, he was taken to Kasarani Police Station and charged. He denied having committed the offence. He concluded the testimony by alleging that his sister disagreed with his wife over land.

7.The trial court analyzed evidence adduced and reached a finding that the appellant defiled the complainant. It convicted and sentenced him to; serve twelve (12) years imprisonment.

8.Aggrieved, the appellant proffered an appeal against the conviction and sentence on grounds that; Evidence adduced did not meet the required standard; the charge was defective; vital witnesses were not produced; and, the appellant’s cogent defence was not considered.

9.The State was granted an opportunity to file submissions that were not forthcoming.

10.This being a first appellate court I must examine and analyze evidence adduced at trial afresh and reach independent conclusions bearing in mind that I had no opportunity of seeing or hearing witnesses who testified. This duty of the court on a first appeal was stated by the court in Okeno -vs- Republic [1972] EA 32 as follows:“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] EA 336) and to the appellate courts 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] EA 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 courts’ 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] EA 424”.

11.The offence of defilement is defined by Section 8(1) of the Sexual Offences Act (SOA) as follows:A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

12.Ingredients of defilement were stated in the case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013 where court delivered itself thus:“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”

13.Therefore, the court to be persuaded to reach a verdict of guilty, it must find that there was proof of the age of the victim; the act of penetration and positive identification of the perpetrator.

14.On the question of age, the same is proved by medical evidence, documents issued at birth and even evidence tendered by the parents or guardians. In the case of Francis Omuroni vs. Uganda, Criminal Appeal No. 2 of 2000, the Court of Appeal (Uganda) it was stated that:“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense”

15.A child health card was issued to VW whose mother was indicated as CN. The child was born on 2^nd September, 1997. Therefore, at the time of the act the victim/complainant was seventeen (17) years old, hence a child. This evidence was confirmed by PW6 CN her mother.

16.On the second ingredient, penetration is defined by Section 2 of the Sexual Offences Act as follows:“…Partial or complete insertion of the genital organs of a person into the genital organs of another person.”

17.The complainant though alleged to have been retarded, recounted events as they unfolded. It was her testimony that the assailant asked her to go and see where he lived. She reluctantly went and upon arrival he caused her to sleep on the mattress and told her to remove clothes. She complied, and having removed all her clothes the innerwear inclusive, the appellant removed his clothes as well, then lay on top of her and put his genetalia (thing used to urinate) into has. She alluded to having not understood what the act was all about as she did not feel good, but, upon finishing the act, he removed his genetalia slowly and she had the opportunity of seeing blood that came out of her.

18.PW2 found the appellant on top of the complainant. The complainant was subjected to medical examination the same night and it was confirmed that the vulva had blood and there was a tear on the posterior fourchette. The bleeding tear was at 3 and 9 O’clock. ( See the Post Rape Care Form (PRC). This was proof of penetration having occurred.

19.In his defence the appellant faulted PW2 his sister for framing him. He alleged that PW2 went to his house with the complainant and came up with allegations after he escorted them to hospital. In the result, he faults the court to have disregarded his defence. On cross examination PW2 explained that they took both the complainant and appellant to hospital because he denied having engaged in coitus despite being found lying on top of the complainant.

20.What is not in dispute is the fact of the complainant having sustained injuries in her genitalia on the fateful night and the assailant having been identified by the complainant as the assailant. Secondly, considering circumstances that existed when PW2 found the complainant and appellant, the trial court did not fall into error in deducing that the appellant was the culprit.

21.The appellant complains that the charge was defective as the offence was stated to be contrary to Section 8(1) (3) of the Sexual Offences Act. Section 382 of the Criminal Procedure Code (CPC) provides thus:Subject to the provisions hereinbefore contained, no findi8.ng, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.

22.In the case of Samuel Kilonzo Musau v s. Republic (2014) eKLR Criminal Appeal No. 153 of 2013, the Court of Appeal Stated that:“As will be readily apparent, section 8(1)is the offence section; it creates the offence of defilement constituted by committing an act which causes penetration with a child. Section 8(2) is the punishment section and prescribes life imprisonment when the child defiled is aged eleven years or less. The charge would have been properly framed if it charged the appellant with defilement contrary to section (8) (1) as read with sections 8(2) because section 137 of the Criminal Procedure Code requires the statement of the offence to describe the offence in ordinary language and if the offence is one created by enactment, it shall contain a reference to the section of the enactment creating the offence.In this case, the statement of offence, though lumping section 8(1) and (2) together, contained the ingredients of the offence and the prescribed punishment. The irregularity was one that was, in our view, curable under section 382 of the Criminal Procedure Code. That provision insulates a finding or sentence of the trial court from challenge on account of any error, omission or irregularity in the charge, unless it has occasioned a miscarriage of justice.”

23.No miscarriage having occurred, the allegation that the charge was defective was not founded on any fact.

24.On the question of vital witnesses having not been availed;Section 143 of the Evidence Act provides thus:No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.

25.In the case of Donald Majiwa Chilwa and 2 others v s. Republic (2009) eKLR the court stated that:“The law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses ’evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution with-holds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case.”

26.The complainant herein was the key witness. Her testimony was unshaken. The appellant dismisses PW2 his sister as having been a liar following the testimony of the Investigation Officer who stated on cross-examination that PW2 used to lie to her that the complainant could not be traced but she later found her. This would be interpreted as an attempt to help the appellant. Be as it may, the case proceeded and this fact perse would not make the case presented by the prosecution to be questionable.

27.Therefore, there having been no other vital witness, the prosecution was not bound to call witnesses who were not helpful.

28.Having considered evidence in totality, I find the appeal having no merit. Accordingly, it is dismissed.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT NAIROBI,THIS 19TH DAY OF OCTOBER, 2022.L. N. MUTENDEJUDGEIN THE PRESENCE OF:AppellantMs. Odour for DPPCourt Assistant - Mutai

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