|Criminal Appeal 42 of 2010
|H.S v REPUBLIC
|08 Apr 2011
|High Court at Mombasa
|Maureen Akinyi Odero
|H.S v REPUBLIC  eKLR
|From Original Conviction and Sentence in Criminal Case No. 242 of 2009 of the Principal Magistrate’s Court at Kwale: A.M. Obura (Mrs.) – R.M.
|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
IN THE HIGH COURT OF KENYA
CRIMINAL APPEAL NO. 42 OF 2010
The Appellant entered a plea of ‘not guilty’ and his trial commenced on 2nd April 2009 at which trial the prosecution led by INSPECTOR SIBUDA called a total of four (4) witnesses in support of their case. The complainant M.R told the court that she lives with her father (the Appellant). On 25th January 2009 the complainant went to bed. While she was asleep in her bed the Appellant came into her room armed with a panga. He removed her clothes and defiled her twice. The next morning the complainant left the house and went to school as usual. After school she collected her clothes and went to the home of her uncle H to whom she reported the incident. The matter was then reported to the authorities who arrested the Appellant. The complainant was taken to Kwale District Hospital for medical examination. Upon completion of police investigations the Appellant was arraigned in court and charged with this offence of Incest by a Male Person.
At the close of the prosecution case the Appellant was found to have a case to answer and was placed on his defence. He gave a sworn defence in which he vehemently denied having ever defiled his daughter. On 29th January 2010 the learned trial magistrate delivered her judgement in which she convicted the Appellant as charged and after listening to his mitigation sentenced him to serve a term of life imprisonment. Being aggrieved with both his conviction and sentence the Appellant filed this present appeal.
The Appellant who appeared in person at the hearing of the appeal opted to rely entirely upon his written submissions which had been duly filed with the leave of the court. MR. ONSERIO learned State Counsel who appeared for the Respondent State made oral submissions by which he opposed the appeal and urged the court to uphold both the conviction and sentence of the lower court.
With answers like this and following the conclusion made on the ability of the witness to comprehend the nature of an oath, the trial magistrate erred in proceeding to direct that the complainant give sworn testimony. In the circumstances the trial court ought to have directed that the complainant give unsworn evidence. However this error alone may not lead to the nullification of the subsequent proceedings as in my view no prejudice was suffered by the Appellant. He was still able to cross-examine the complainant on the evidence she gave whether sworn or not.
In her evidence the complainant told the court that after the incident she left her home and went to the home of her uncle called H. C, to whom she narrated what had befallen her. Surprisingly this ‘H. C’ was not called as a prosecution witness despite his being a crucial witness to corroborate the complainant’s story as he was the first person she made her report to. This ‘Uncle’ was also a key witness in that he would have been able to provide details of the state the complainant was in when she came to his home. Was she crying or calm? Was her clothing disheveled? Did she have any wounds or bruises on her person? All these are key observations which the said ‘H.C’ must have made and would have been able to share with the trial court. Failure to call such a crucial witness, greatly weakens the prosecution case.
The doctor is here admitting that his investigation led to the possible conclusion that the complainant had engaged in frequent sexual encounters. This contradicts her evidence that she was defiled only twice by her father. Indeed the more likely finding ought to have been tenderness and/or pain in the vaginal opening. This was not noted at all by the doctor. The medical evidence adduced does not in my view corroborate the testimony of the complainant that she had been defiled. It only reveals that she had had frequent sexual intercourse. The complainant only alleged that the Appellant defiled her twice not on numerous occasions.
Taken as a whole I find the prosecution evidence to be weak. The case against the Appellant has not been proved beyond a reasonable doubt as not all the necessary witnesses were called. Several doubts abound which doubts must legally be resolved in favour of the Appellant. I find that the conviction rendered by the trial court was unsafe and do hereby quash the same. The attendant term of life imprisonment is also set aside. This appeal succeeds. The Appellant is to be set at liberty forthwith unless he is otherwise lawfully held.