1.The Appellant herein, was charged in Sexual Offence Case No 46 of 2015 in the Senior Resident Magistrate’s Court at Mwingi with the offence of defilement contrary to Section 8(1) (2) of Sexual Offences Act No 3 of 2006.
2.The particulars of the offence were that; the Appellant, on the 16th day of December 2014, in Mwingi West Sub-county of the Kitui County, intentionally and unlawfully did an act which caused the penetration of his male genital organ namely penis into the female genital organ namely vagina of (name withheld) a child aged 9 years’ old
3.The Appellant was also charged with an alternate charge of committing indecent act with a child contrary to Section (11) (1) of the Sexual Offences Act No 3 of 2006
4.The particulars of the alternative charge are that; the Appellant, on the 16th day of December 2014, in Mwingi West Sub-county of the Kitui County, intentionally and unlawfully caused his penis to cause contact with the female genital organ namely vagina of TKN a child aged 9 years.
5.The Appellant pleaded not guilty to the charge and the case proceeded to full trial. Upon trial, the trial court found the Appellant guilty of the charge and sentenced him to life imprisonment. Prior to reaching its determination, the trial court considered evidence presented by the prosecution as well as the witnesses who testified as follows;
6.The Prosecution’s Case in summary was that the Appellant, a neighbour to the victim lured the minor to his house where he defiled her. The minor was in the company of other children some of who were summoned to testify during trial.
7.The mother to the minor was away at the time and only learnt of the incident, the following day because the minor did not report the incident to her when she arrived home in the evening. The Prosecution’s case hinged on witness account and medical evidence which indicated that defilement had taken place.
8.When placed on his defence the appellant denied committing the offence and blamed the victim’s mother for having a personal vendetta against him after he allegedly turned off her advances geared towards a romantic relationship.
9.Below is a summary of the evidence tendered: -
10.TKN(PW1) after a voir dire exercise, the complainant told the court that she was in the company of her siblings on the material day when the Appellant asked her to accompany him to his house and when she obliged, the Appellant directed her to his bed where he defiled her. She stated that she felt pain but she did not cry or scream because she was frightened. That after the incident, she went home and informed her cousin and the information reached her mother who took her to Migwani Hospital and later to Migwani Police Station. She also stated that she knew the Appellant as he is from her village.
11.JM(PW2)_PW1’s mother told the court that she arrived home on the material day and found her daughter sleeping alleging that she was unwell. That the following day, her sister-in-law informed her that she had been told by her daughter, K that PW1 had been defiled by the Appellant the previous day. The witness stated that she inquired from her daughter whether that was true and she confirmed that it was. PW1 told her that the Appellant had asked her not to tell anybody about what had transpired. She stated that she examined her daughter’s genitalia and noticed that it was bruised and that she also took her to Migwani District Hospital where she was examined and treated. The witness produced PW1’s Birth Notification (P Ex 4) which indicated that she was born in September 2005. On cross examination, the witness denied having a romantic relationship with the Appellant and further denied framing him for the offence
12.Titus Watene Kisagu (PW3) the Senior Assistant Chief, Ngongoni location told the court that he received a complaint of defilement from PW2 and he advised her to report the matter to the police and to also take PW3 to hospital. He stated that he knew the Appellant but that he disappeared when the incident was reported but he resurfaced and he was arrested near [Paiculars Witheld] Market in May of 2015.
13.GKK(PW4) told the court that she was at home on the material day when she saw her cousin, PW1 getting into the Appellant’s house where she stayed for up to an hour. That she asked PW1 what had transpired and PW1 told her that the Appellant had asked her to go into his bed where he had done bad things to her and that she was feeling pain in her genitalia. She stated that she went home and told her mother what PW1 had told her the following day who in turn reported the same to PW2.
14.Dr Yukas Mohamed(PW5) told the trial court that he was a medical doctor at Migwani Sub-District Hospital. The witness testified on behalf of the Clinical Officer one, Gichomi Waihenya whom he stated attended to PW1 at Migwani District Hospital. The witness stated that he was familiar with his handwriting as the two were school mates as well as colleagues. The witness stated that PW1 was escorted to Migwani District Hospital on December 1, 2014 by PW2 where she was examined by Doctor Waihenya on suspicion of defilement. That upon examination, the doctor noted no bruises on the upper limbs, she was not bleeding on vaginal examination but her hymen had been broken and she had a foul smell with a reddish vagina wall. That the doctor also noted that PW1’s labia minora and majora had been bruised. The witness also stated that according to lab and physical examination, there was evidence of vaginal penetration. The witness produced treatment notes marked as P-exhibit 1, P3 form produced as P-exhibit 2 and a post rape care form produced as P-exhibit 3.
15.Jackson Karima (PW6) the Investigating Officer stated that he was working at Nguutani Police Station at the material time when he received a call from the Officer Commanding Station Migwani Police Station on December 18, 2014 with a report that a defilement case had been lodged at the station. The witness stated that he visited the home of the complainant where he spoke to her and she confirmed that she could be able to identify the perpetrator as he was her immediate neighbour. That the officer proceeded to the home of the Appellant but he was not there. The witness stated that he learnt that the Appellant had disappeared after the offence so he liaised with the Area Chief and asked him to assist the police in tracing him. He stated that he received a report that the Appellant had resurfaced and he was arrested on May 16, 2015.
16.JK(PW7) stated that she was informed by her daughter that she had seen the Appellant defiling PW1 and that after receiving the report she went to PW1’s home where she examined and confirmed that indeed PW1 had been defiled. She testified that she reported the same to PW2 who took PW1 to hospital the following day for medical attention. She also stated that the Appellant disappeared after the incident.
17.When placed on his defence, the appellant Julius Kasolya Ithuku (DW1) stated that he was framed by PW2 after he declined her advances for a romantic relationship. He stated that he was an electrician working in Sagana. That he was arrested when he had travelled to his rural home to visit his relatives. He stated that he had gone to [Paiculars Witheld] on December 16, 2015 to get his phone charged when three people on a motor bike stopped him. That they were the Assistant Area Chief, his neighbour [Paiculars Witheld]and one [Paiculars Witheld]. That the three manhandled him as the Assistant Area Chief ransacked his trousers demanding for money from him. That he was then escorted to Nguutani Police Station where his fingerprints were taken the following day and that all along he did not know the reason behind his arrest. He stated that he was then escorted to Mwingi Law Courts where he learnt that he was facing defilement charges.
18.The trial evaluated the evidence tendered and found that the Prosecution’s case had been proved against the appellant adding that all the ingredients of the offence upon which the appellant had been changed had been proved. The appellant was then convicted and sentenced to serve life imprisonment,
19.He felt aggrieved by both conviction and sentence and filed this appeal raising the following grounds namely: -
20.In his oral submissions in court, the Appellant contends that he was framed by PW2 whom he had a grudge with. He also submits that the complainant failed to mention whether the house she was forced into was open or closed. He also avers that the time of the incident was not recorded and that there was no blood stain or any evidence of defilement. According to him, the evidence of PW2 was hearsay as she was not home when the incident happened. He avers that PW4 was told of what to tell the court and that the charge sheet was defective because it indicated that the incident happened on December 16, 2014 while PW4 stated that it happened on December 19, 2014. He also submits that he was not examined by a doctor and that the Investigation Officer did not tender his investigation diary in evidence and lastly that the trial court failed to consider his testimony/defence.
21.The State/Respondent through Mr Okemwa for Office of the Director of Public Prosecution opposed this appeal faulting the appellant for raising irrelevant matters not covered in the grounds of the Petition of his appeal. The State insisted that the appellant did not establish his alibi as there was no substantiation adding that it proved all elements of defilement through the evidence tendered during trial.
22.The duty of this court as the 1st Appellate Court was well stated in the famous case of Okeno versus Republic (1972) EA 32 where the Court of Appeal noted as follows:-
23.The issues cropping up in this Appeal is whether the Prosecution proved its case and whether the defence raised by the Appellant casted doubts over the Prosecution’s Case.
Whether the Prosecution’s Case proved all the elements of the offence of defilement.
24.The Appellant was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act which provides;
25.The specific elements of the offence defilement arising from Section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are: -
26.On age of the Complainant, the ttestimony during trial was to the effect that the complainant was 9 years old at the time of offence. In a vior dire exercise conducted by the court, PW1 informed the court that she was 9 years old.
27.PW2, the Complainant’s mother also produced a birth notification form which indicated that the complainant was born on December 28, 2005 as such she was 9 years old at the time of the offence.
29.This court finds that the evidence tendered proved that the minor/victim was aged 9 years at the material time.
31.In her testimony, PW1 told the court that sometime in December, the Appellant called her into his house where he asked her to go to his bed. That he asked her to remove her panty which she did and he also removed his long trousers, got hold of her and defiled her. She stated that she felt pain in her private parts.
32.PW5, Dr Yukas Mohamed produced treatment notes, a P3 form and a post rape care form all in reference to the complainant. The documents were filed by doctor Githomi Waihenya who conducted lab and physical examination on the complainant and concluded that she had evidence of vaginal penetration.
33.This court however finds that the medical evidence though tendered by a qualified medical doctor, was tendered by a person who was not the author of the documents. The Prosecution failed to lay proper basis as stipulated under Section 33 of the Evidence Act. PW5 stated that he was familiar with the handwriting of Dr. Githomi Waithenya but failed to state where the colleague was situate and if he could not be availed without an amount of expense or delay that was deemed unnecessary in the circumstances. The Prosecution seem to have assumed that because PW5 worked with the author of the medical evidence there was no need to lay basis. That was a misconception and the end result is that the medical documents tendered were rendered here say by operation of law.
34.This court however is alive to the provisions of Section 124 of the Evidence Act which stipulate that offences of sexual nature really requires no corroboration. The medical evidence though, could have provided solid corroboration was tampered with by the both the Prosecution and the trial court who fell into error by failing to comply with Section 33 of the Evidence Act.
35.This court finds that notwithstanding the failure by the Prosecution to comply with the above cited provision, there was sufficient corroboration of the minor’s allegation provided by the mother (PW2). She examined her daughter’s private part and noted that it was bruised. Her fears were confirmed.
36.The evidence of PW4 and PW7 in my considered view were quite corroborative of what the minor (PW1) told the trial court. I find that the Appellant’s defence that the victim’s mother had a personal vendetta after he turned her down to be an afterthought and evasive at best. The evidence of PW4 and PW7 provided independent corroboration and this court finds that the crucial element of penetration was well proved.
37.I also find that the appellant in his petition of appeal did not fault the prosecution’s case on the issue noted above regarding the tendering of medical evidence of PW5. The appellant contention was that no one saw him commit the crime which is true but the evidence of PW4 who was playing with the victim at the material time and place in my view, was quite telling as she saw the minor (PW1) enter the Appellant’s house and one hour or so thereafter, she testified that the victim went out of the house and confided to her what had happened.
38.It’s PW4 who triggered the action to apprehend the appellant because after she reported the incident to her mother (PW7), the mother went and informed the victim’s mother and this resulted in the action being taken against the appellant.
39.On identification of the offender, it is not contested that the Appellant was an immediate neighbour and took advantage of that proximity to commit the crime. His identification was positive and conclusive.
40.Testimony from PW1 was that she was in the company of her siblings when the Appellant called her and asked her to go into his house where he defiled her. She submitted that after the incident she went home and informed her cousin of what had transpired. Testimony from PW2 and the Appellant himself was that they were neighbours and PW1 knew him.
41.PW4 corroborated PW1’s testimony, she stated that she saw PW1, her cousin as she went into the Appellant’s house where she stayed for an hour and after she came out she asked her what had happened and PW1 told her that the Appellant had done bad things to her. She also stated that the Appellant and the children were immediate neighbours.
42.This court finds that the Prosecution’s Case proved beyond doubt that the Appellant had defiled the Complainant. I find that conviction was safe and the same is upheld.
44.There is no doubt going by the record from the trial court that the trial magistrate appears not to have considered mitigating circumstances and simply stated that the appellant was to serve statutory sentence of life imprisonment.
45.The trial court’s mind was minded about the statutory prescription which in my view though correct was a bit harsh considering that the trial court did not for example consider aggravating factors or mitigating factors.
47.I am persuaded to intervene on sentence by setting aside life sentence and in its place the appellant will serve 30 years’ imprisonment. In sum, this appeal on conviction fails and the conviction is upheld.
48.The sentence of life imprisonment is set aside and in its place, the Appellant will now serve 30 years in jail. 14 days Right of Appeal.