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Ogal v Republic (Criminal Appeal E037 of 2022) [2023] KEHC 19147 (KLR) (26 June 2023) (Judgment)
Neutral citation:
[2023] KEHC 19147 (KLR)
Republic of Kenya
Criminal Appeal E037 of 2022
MS Shariff, J
June 26, 2023
Between
Eli Onyango Ogal
Appellant
and
Republic
Respondent
(Being an appeal arising from the conviction and sentence by Hon F. Rashid (P.M) in original Winam PMC Sexual Offence Case No. 9 of 2018 delivered on 5/08/2022)
Judgment
1.Eli Onyango Ogal was charged with the offence of defilement contrary to Section 8(1)(2) of the Sexual Offences Act, 2006. The particulars were that on January 19, 2018 in Kisumu East Sub County, within Kisumu county, intentionally caused his penis to penetrate the vagina of LAO, a child aged 7 years.
2.He faced an alternative count of committing an indecent act with a child contrary to Section 11(1) of the Act. Upon plea, the appellant denied both charges.
3.PW-1 the minor (LAO) stated that one Friday while home with her younger brother, the appellant came to her home to charge his laptop. He gave them Kshs 5/- to buy a balloon and when they came back, the appellant sent away her younger brother and defiled her in his bed. She didn’t inform her mother immediately of the incident until she experienced some pain. She was taken to the hospital for examination.
4.PW-2, SMO stated that her daughter PW-1 came home on February 12, 2018 from school complaining of pains in the private parts. She checked and saw some pus on the minor’s vagina. She interrogated the minor who said she had been defiled by the neighbour after buying them sweets. She took the minor to the hospital that very evening.
5.PW-3, Winfred Awuor Sibuor from Jaramogi Oginga Odinga Hospital testified that the minor was examined on February 16, 2018 and found the outer genitalia normal, broken hymen and pus on the vagina. She concluded there had been penetration.
6.PW-4 PC Veronica Kanila stated the complaint was reported at the police station on February 16, 2018. They recorded the statements and issued P3 on February 17, 2018 and arrested the appellant.
7.The appellant was subsequently put on his defence and elected to give sworn testimony.
8.His testimony was that he left for work on January 19, 2018 at 7.45 am and was picked by DW- 2, a motorcycle operator. He spent the entire day in the office leaving at 5.00pm arriving home at 5.30 pm. He denied seeing the minor on that day.
9.DW-2 Peter Ogwel Orwa stated that on the material day, he picked DW-1 from his house at 7.45 am and at 4.5o pm, he picked him from the office.
10.Subsequently, the trial magistrate convicted and sentenced the appellant to 25 years imprisonment provoking the instant appeal which is anchored on the following grounds;
11.In the submissions filed the appellant contends that the provisions of Section 200 of the Criminal Procedure Code was not complied with upon a new magistrate taking over the matter. He also contends that the language used in the trial is not indicated. That this is a violation of Article 50(2)(m) of the Constitution. Counsel relies on the authorities in Diba Wako Kiyato v Republic (1982-1988) 1 KAR 1974.
12.Further that Section 89(3) of the CPC requires a charge sheet to be signed by the magistrate which was not done in the instant case. counsel relies on Ndegwa v R (1985) KLR 535, Anthony Otieno Ndonji v Republic [2019] eKLR, Richard Charo Mole v Republic [2010] eKLR and Henry Kailutha Narichia & another v Republic [2015] eKLR.
13.Counsel also contends that the P3 was not produced in the trial but marked for identification and cannot therefore be relied upon. Reliance is placed on Justus Musau Wambua & another v Repubic [2020] eKLR.
14.On the issue of the burden of proof, it is submitted that the same is on the respondent and the issue of penetration was not proved by the available evidence. Counsel cites Woolmington v DPP[1932] AC 462, Festus Mukati Murwa v R [2013] eKLR, Miller v Minister of Pensions [1947] 2 ALLER 372.
15.On penetration, it is submitted that the available evidence did not show that there was penetration of the minor’s vagina. Reliance is placed on PKW v Republic [2012] eKLR and Michael Mugo Musyoka v Republic [2015] eKLR.
16.On the reliability of witnesses, it is contended PW-1’s evidence is doubtful as she did not report the fact of defilement to her mother or teacher, pW_2 on her part noticed nothing amiss with the minor’s genitals despite bathing her that very evening. That similarly, PW-3’s medical evidence did not show that there was penetration and that the testimony of this witness is doubtful. Reliance has been placed on Ndungu v Kimanyi v Republic [1980] KLR 282, Paul Gitari v Republic [2016] eKLR, John Mutua Munyoki v Republic [2017] eKLR and Paul Kanja Gitari v Republic [2016] eKLR.
17.Finally, on the issue of the defence of alibi, it is submitted that the defence was not dislodged and that the court erred by shifting the burden of proof to the appellant. The authorities in Kiarie v Republic [1984] KLR, Victor Mwendwa Mulinge v R [2014] eKLR and S v Malefo En Andere 1998 (1) SACR 127 (W) at 158.
18.The respondent its part submitted that the prosecution sufficiently proved the offence of defilement and that there was no contradiction in the witness testimony as none was highlighted by the appellant.
Analysis and determination.
19.In Okeno v Republic [1972] EA 32 at 36, the duty of a fisrt appellate court was stated thus:
20.In a charge of defilement, the prosecution is required to establish; complainant’s age, the fact of penetration and positive identity of the assailant.
21.Before delving into the specific ingredients, I will deal with the preliminary issues raised by the appellant thus; failure to comply with Section 200 of the Criminal Procedure Code and the language used in the trial.
22.On the issue of section 200 of the CPC, Sub-Section (3) thereof provides;
23.This provision has been interpreted in several decisions of this court some of which I highlight as follows; in Ndegwa v Republic [1985] KLR at 534 the Court of Appeal stated:-
24.In Office of Director of Public Prosecutions v Peter Onyango Odongo & 2 others [2015] eKLR it was held;
25.Looking at the record in this matter, Hon Rashid FM took over the conduct of the matter from Hon Njalale who was on transfer. Subsequent proceedings that show that on March 14, 2019, the matter came up for mention to confirm the progress of typing the proceedings. On March 28, 2019, the matter came up again in the presence of defence counsel. On that date, a hearing date was fixed.
26.My perusal of the record shows that counsel did not raise the issue of failure to comply with Section 200 of the CPC. I find that if counsel deemed the directions taken on February 13, 2019 was unfavourable to the appellant, an application to that court would suffice. In this case, the matter has been raised on appeal and not in the trial court.
27.In the circumstances, I find that the directions given on the said February 13, 2019 were not a violation of the appellant’s right to fair trial. I thus reject this line of argument.
28.On the issue of language, I note that the appellant was represented all through the trial. The issue of the language used in the proceedings is not material at this moment.
29.Going back to the ingredients of the offence, on the element of age, I note that a birth certificate was produced without objection from the defence in the trial court. I find this limb was proved.
30.The other element is penetration which is defined by section 2 of the Act as; the partial or complete insertion of the genital organs of a person into the genital organs of another person.
31.In this case, the minor testified that; he told me to lie on his bed, he removed his dudu and inserted it in my dudu. He uses his dudu to urinate and use mine to urinate too.
32.According to PW-3, a clinical officer who examined the minor, she found that the hymen was broken and the vagina pus-filled. She concluded that the minor had been defiled as it was not normal for a vagina to have pus.
33.The language used by the minor, that is; ‘dudu’ to connote sexual activity was discussed in Muganga Chilejo Saha v Republic [2017] eKLR and held;
34.It is also trite law that penetration can be proved by way of the victim’s evidence and or medical evidence which clearly showed that the minor had injuries on her genitalia.
35.On the appellant’s identity, the record shows that the appellant was a neighbour to the minor and that the appellant would occasionally charge his laptop from the minor’s home. The minor’s mother indeed confirmed that the minor enjoyed a cordial relationship with the appellant. During the trial, the minor identified him from the dock as Elly.
36.I find the element of identification by way of recognition to have been proved satisfactorily.
37.The appellant also faults the trial court for rejecting his defence of alibi and shifting the burden of proof to him. The defence was to the effect that the appellant was at work on the date of the offence and left work at 5.30 p.m carried by DW-2 on his motorcycle.
38.To that extent, he produced an attendance register showing that he reported to work at 7.45 am.
39.My analysis of the same shows only the reporting time. According to the evidence tendered by the prosecution, the offence occurred after the minor had come back from school which must be in the evening.
40.When an accused, in this case the appellant raises a defence of alibi, the evidence of such defence has to be weighed against all the other evidence presented by the prosecution. In Abdullah Bin Wendo v Rex 20 EACA 166, it was stated:
41.In this case, the time of the offence was after the minor had returned back home from the school, the exact hour is not indicated. The trial magistrate having considered the same found it not to have been sufficient to displace the prosecution’s evidence.
42.I equally find that in light of the evidence tendered by the prosecution in the trial court, the defence was not proved to the required standard and I reject it.
43.On the issue of sentence, Section 8(2) provides for a life sentence, the appellant herein was sentenced to 25 years imprisonment. I find this to be lenient in the circumstances. The appellant has not shown that the trial magistrate in handing down the sentence considered irrelevant factors or failed to take into account material factors before handing down the sentence.
44.It was stated in Ahamad Abolfathi Mohammed & another v Republic [2018] e KLR that;
45.Premised upon the above reasons, I do find that the appeal is without merit and I proceed to dismiss it.
46.The conviction and sentence are hereby confirmed.
DELIVERED, DATED AND SIGNED AT KISUMU THIS 26TH DAY OF JUNE 2023.MWANAISHA. S. SHARIFFJUDGE
