1.This is an appeal from the judgment of the High Court of Kenya at Nakuru, (AN Ongeri, J). The appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No 3 of 2006. At the conclusion of the trial, the appellant was found guilty of the offence. He was convicted and sentenced to 22 years’ imprisonment.
2.The particulars of the offence were that: on December 6, 2010 in Narok South District within the then Rift Valley Province, the appellant inserted his genital organ into the genital organ of NK (name withheld), a child aged 14 years.
3.The prosecution’s case was that; the complainant, a 14-year-old girl, was herding goats when she met the appellant. The appellant was a casual worker. The appellant ordered the complainant to stop, after he had stared at her for a long time. He was holding a panga. He grabbed her by the collar and pulled off the orange skirt she was wearing. He then removed her biker and panty and penetrated the complainant’s vagina with his penis. She screamed. Her father came to her rescue. The father caught the appellant in the act. The matter was later reported to the police. The appellant was arrested and charged with the offence of defilement.
4.The learned Judge in his determination held that the evidence was watertight, the father of the complainant caught the appellant red-handed in the act. The appellant was well known to the complainant and her father, who properly identified him. The court held that the issue of contradictory evidence did not hold water.
5.The learned Judge proceeded to hold that the conviction was secure, as there was overwhelming evidence against the appellant. The court observed that, there was no legal requirement that all witnesses mentioned must be heard. That the complainant’s evidence was corroborated by that of PW2, and the medical evidence on record confirmed penetration. Accordingly, the appellant’s appeal was dismissed.
6.Dissatisfied, the appellant lodged the present appeal. He raised five grounds of appeal and six supplementary grounds of appeal, the latter of which he expounded upon. The grounds were that the learned Judge erred in law in: finding that his fundamental rights were not violated, even though he was not informed of his right under Article 50(2) (g) (h) of the Constitution; relying on a defective and duplex charge sheet; relying on inconsistent and contradictory evidence; not finding that the medical report exonerated the appellant form the offence; not finding that the exhibits were produced illegally, as they were not listed as exhibits at the time of plea taking, and because they were not kept by the police; and that the learned Judge erred in not finding that his defence was plausible and raised enough doubts.
7.At the hearing of the appeal, the appellant was in person while the state was represented by Ms. Kisoo. Parties relied on their respective written submissions.
8.The appellant submitted that at the time of plea taking, he was not informed of his right to legal representation, nor was he warned of the severity of the charges. The appellant contended that the addition of subsection (3) in the judgment came too late in the day, and a grave violation as the prosecution did not make an application for substitution. He urged that the matter be referred for retrial. The appellant also argued that he was arrested on December 6, 2010 but the charge sheet indicated that he was arrested on December 8, 2010. He deemed that to be a violation of his rights under Article 49(1) (f) (i) (ii).
9.The appellant further submitted that PW1 was not a credible witness. He also noted that no spermatozoa were found on the complainant when she was examined. The doctor who testified stated that his findings confirmed sexual activity, even though there was no laceration and the hymen was not torn. He deemed the doctor’s conclusion to be inconsistent with the results of the examination. He further noted that the panga mentioned by PW1 was never recovered or mentioned by PW2 and PW4.
10.The appellant further pointed out that the alleged torn clothing was not surrendered to the police, and the complainant continued to use the same at home, thereby interfering with the evidence; that is because it was not proved that the biker and panty produced in court were the actual ones the complainant was wearing on the material day. He argued that the production of the said exhibits was irregular. The appellant attributed his tribulations to the grudge which arose when he sought to recover his salary arrears from the father of the complainant.
11.Opposing the appeal, the learned state counsel relied on the provisions of Sections 134 and 382 of the Criminal Procedure Code; in noting that, the charge sheet contained the statement of offence which the appellant had been charged with, and the particulars of the said offence. Counsel pointed out that the offence was read to the appellant in a language he understood and he responded thereto. It was the respondent’s case that the charge sheet presented before the court met all the basic requirements of a valid charge. In any event, as that issue was not raised in the first appeal, it was an afterthought. It was the understanding of counsel that the failure to use the words “intentionally”, “unlawfully” and “without consent”, did not go to the substance of the charge, and the same can be curable under Section 382.
12.Counsel further submitted that not all inconsistencies and contradictions are fatal to the prosecution case. (see: Richard Munene v Republic  eKLR and Eric Ondeng’ v Republic  eKLR). The court was told that the appellant had failed to show any contradiction in the evidence, and that the prosecution witnesses were consistent in their testimonies before the trial court.
13.Counsel submitted that when the appellant was put on his defence, he gave an unsworn testimony, which was a mere denial. The appellant had stated that he had had a disagreement with his employer over salary payment, and he therefore attributed his arrest and prosecution to a scheme which was calculated to silence him. Counsel noted that the trial court had not only captured the appellant’s defence, but had proceeded to evaluate the same, and ultimately concluded that the appellant’s said defence was neither plausible nor sufficient to dent the case which the prosecution had established.
15.We have carefully considered the record of appeal, the written submissions by both parties, authorities cited and the law. The issues for determination are whether or not the charge sheet was fatally defective; and whether or not the ingredients of the offence of defilement were proved beyond reasonable doubt.
16.The issues of violation of rights, medical evidence and irregular production of exhibits were not raised before the first appellate court; we will therefore not delve into their merits or demerits. We so hold because an appeal cannot arise out of something upon which the court appealed from had not rendered a decision, unless the appellant can demonstrate that he had raised the said issue, but the court had failed to make a determination on it. It is our further finding that the issues of any alleged contradictions and inconsistencies are matters of fact. As this court’s jurisdiction is limited to matters of law only, we must refrain from delving into matters of fact.
17.The appellant contends that the charge sheet relied on by the trial court to convict him was defective. In the High Court, the appellant stated that the charge sheet was defective because it did not include the word “consent”, while in the present appeal he stated that the charge sheet did not reflect the evidence in chief. The High Court did not expressly determine this ground. Counsel for the respondent conceded that, there was a typographical error on the charge sheet with respect to the date the appellant was arrested being December 8, 2010. Counsel also submitted that the failure to include the words; “intentionally”, “unlawfully” and “without consent”, in the charge sheet did not go to the substance of the charge and the same was curable under Section 382.
18.It is trite that an accused person is entitled to not only be charged with an offence recognized under the law, but also to be furnished with all the necessary details of the offence, so as to enable him appreciate the nature of the charge(s) against him and to enable him to prepare an appropriate defence. It follows therefore, that a charge sheet which was deficient in substance would prejudice an accused person’s right to a fair trial as provided for in Article 50(2) (b) of the Constitution. This was the rationale behind Section 134 of the Criminal Procedure Code. The Section provides that:
19.Whether an anomaly can render a charge sheet defective was determined in the case of Isaac Omambia v Republic  eKLR, where the court considered the necessary ingredients in a charge sheet as follows:
20.In determining whether a charge sheet was defective or not, this Court in the case of Sigilani v Republic  2 KLR, 480 stated that:
21.Having perused the charge sheet in this case, we note that the appellant was charged with; “defilement contrary to Section 8(1) of the Sexual Offences Act, No 3 of 2006”. The charge sheet clearly indicated the statement of the offence that the appellant was charged with. The said offence is known in law. The charge sheet also contained the particulars of the offence. The appellant was alleged to have inserted his genital organ into the genital organ of the complainant, a child aged 14 years, on December 6, 2010 at [particulars withheld] in Narok South District. The charge sheet was not deficient in substance, and it could not therefore prejudice the appellant.
23.In the present case, it is not in dispute that the provision stipulating the sentence prescribed in the Sexual Offences Act was not cited in the charge sheet. It is also not in dispute that the words “intentionally”, “unlawfully” and “without consent” were not used in the particulars of the offence. The question to be determined then, is whether the omissions were prejudicial to the appellant. In the case of Peter Sabem Leitu v R, Cr. App No 482 of 2007 (UR) the court held that:
25.In the case of JMA v Republic  KLR 671, the court observed that, not all defects in a charge sheet will render a conviction thereunder invalid. Over time, the test of determining whether a charge is fatally defective, so as to render any conviction a nullity has been established, both in our jurisdiction and other jurisdictions. In that regard, the Supreme Court of India in Willie (William) Slaney v State of Madhya Pradesh [A.I.R. 1956 Madras Weekly Notes 391], it was held that:
29.From our re-evaluation of the proceedings on the record, we hold the considered view that the appellant cannot be said to have misunderstood the nature of the charges against him. It is clear from his defence and submissions that he understood that he was being accused of having committed the offence of defilement, against the complainant. In our view, the omissions did not render the charge sheet fatally defective. In so finding, we are guided by the decision in the case of Willie(William) Slaney v State of Madhya Pradesh (supra), where the court held:
32.From our analysis of the case herein, we find that the error in the charge sheet did not occasion a failure of justice.
33.The Sexual Offences Act sets out the elements of the offence of defilement as follows: the victim must be a minor; there must be penetration of the genital organ, but such penetration need not be complete or absolute. Partial penetration will suffice; and the identity of the perpetrator must be established. For the offence of defilement to be established, the prosecution must prove each of the above ingredients.
34.It is not in dispute that the complainant was 14 years old. The evidence on the age of the complainant was also corroborated by the evidence of her father and the doctor.
35.The evidence of the complainant concerning the incident, was also corroborated with the evidence of her father, who the trial court found to be truthful. We therefore find that the evidence was sufficient by dint of Section 124 of the Evidence Act. It was on the strength of the complainant’s evidence, that the appellant grabbed her by the collar, pulled off the orange skirt she was wearing and then removed her biker and panty and penetrated her vagina with his penis; and her father’s evidence that he caught the appellant in the act and arrested him that the appellant was found guilty.
36.As regards the identity of the appellant, we note that he was well known to the PW1 and her father. The appellant confirmed that he was known to the complainant’s father as he was his employer. This was a case of recognition.
37.We have no doubt that PW1 and her father were able to recognize the appellant. In the case of Cleophas Otieno Wamunga v Republic  eKLR, this Court while dealing with the complexities of an identification of an assailant stated:
38.As regards the appellant’s defence, the appellant gave an unsworn testimony and chose not to call any witnesses. The court proceeded to analyse the said evidence. We find that the court extensively considered the appellant’s defence.
39.From the foregoing, we find no reason to make a finding that is inconsistent with the first two courts on matters of facts. We are satisfied that the appellant’s conviction was safe.
40.In the instant appeal, having considered the evidence on record and the circumstances of this case on its own merit, we are not inclined to interfere with the findings of the two courts below.
41.The upshot is that the appeal against conviction and sentence is without merit and it is hereby dismissed.Orders accordingly.