IN THE COURT OF APPEAL

AT KISUMU

(CORAM:  ONYANGO OTIENO, AZANGALALA & KANTAI  JJ.A)

CRIMINAL APPEAL NO. 295 OF 2012

BETWEEN

MARK OIRURI MOSE …..................................................................... APPELLANT

AND

REPUBLIC …...................................................................................... RESPONDENT

(Appeal from a Judgment of the High Court of Kenya at Kisii (Musinga J.)

          dated 12th July 2010

in

H.C. CR.A. NO. 172 OF 2009

  *********************

 JUDGMENT OF THE COURT

As on or about 9th December, 2008, the complainant in this case, L B M (PW1) said she was six years old.  That was confirmed by her mother J N (PW2).  On 11th November, 2008, about a month before the date she gave evidence in court, during day time, she, and one G M were inside Nyambage's maize farm looking for weeds for their cow.  The appellant, whom she said she knew as Mark Oiruri and as one who was then working at M's farm approached her at the time when G had gone to their grandmother's house to get a sweater.  The appellant put her down, removed her underpants and removed his trouser as well.  He then went between her legs and had sexual intercourse with her.  She felt a lot of pain and started crying.  The appellant then left her but apparently after he had ejaculated for L said in evidence that she saw some water substance from her private parts after the appellant had had sexual intercourse with her.  L went home and told G  what the appellant had done to her.  She did not however tell her mother what had happened to her till 14th November, 2008, when her mother, having noticed that for sometime she had difficulties walking and insisted on her telling her what had happened that she offered the information.  J examined her private parts and found she was discharging a whitish substance mixed with blood from her private parts and after consultations with her grandmother MM (PW4) who also examined her private parts and concluded that L was defiled.  J prepared warm water and had L take a bath.  On further interrogation, L told her mother that the appellant whom she referred to as Mark is the one who had had forceful sexual intercourse with her. M and J raised alarm and as they did so, they went to the appellant's employer's home where they found the appellant absent but before long the appellant came and as he wanted to escape, the two women and the appellant's employer held him.  They called the Assistant Chief of the area who advised that the appellant be taken to Omogonchoro AP's post.  He was taken to that AP's post where he was rearrested by AP Corrol (PW3), who after rearresting the appellant, booked the report in the Occurrence Book and then got a vehicle which took both the complainant and the appellant to Kisii Police Station.  She was referred to Nyamira Police Station and she escorted them to Nyamira Police Station.  The appellant was booked in the cells whereas the complainant was taken to Nyamira District Hospital by PC Woman Dayo (PW5). 

On 16th November, 2008, Victor Nyambati (PW6) examined the complainant and formed the opinion that she had been defiled because she had bruises on the labia minora  with blood oozing and vaginal walls were blood stained with whitish discharge which was not smelling.  He filled and signed P3 form which at the  trial, he produced as an exhibit in the case.  Thereafter PC Dayo charged the appellant with the offence of defilement contrary to Section 8(1)(2) of the Sexual Offences Act No. 3 of 2006 and in the alternative with the offence of Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 Laws of Kenya.

As the particulars of the offence the appellant faced and the particulars of the alternative charge are also important for purposes of this judgment, we will reproduce the same particulars herebelow.

The particulars of the main charge of Defilement contrary to Section 8(1)(2) of the Sexual offences Act No. 3 of 2006 were that:

“On the 11th day of November 2008 at [particulars withheld]in Nyamira District within Nyanza province, intentionally and penetration to LM a girl aged 6 years.”

And the particulars of the alternative count of Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006, Laws of Kenya were that:-

“On the 11th day of November 2008 at [particulars withheld] in Nyamira District within Nyanza Province, unlawfully and  indecently assaulted L (sic) M by touching her private parts namely vagina.”

These charges were preferred against the appellant at The Principal Magistrate's Court at Nyamira.  He denied the main charge of defilement as well as the alternative charge of Indecent Act with a child.  After the close of the prosecution case, the appellant, at first elected to give evidence on oath, but later settled for an unsworn statement and stated that on the material date 11th November, 2008, he attended to his routine chores from morning to evening.  In the evening, he milked the cow and went to sell milk.  On his way back, he saw many people inside the compound and saw one woman screaming, and claiming that he had defiled a child. The people arrested him and solicited money from him so as to enable them release him.  As he had no money he was taken to Omogonchoro AP's post and thereafter to Nyamira Police Station.  He denied the offence, and its alternative.  We understand his defence to have been an alibi.

The learned Senior Resident Magistrate, after considering the entire evidence that was before her, found the appellant not guilty of the main charge of defilement but found him guilty of the alternative charge of Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.  In doing so, the learned Senior Resident Magistrate stated as follows in the judgment dated and delivered on 30th July, 2009:-

“From the medical evidence it appears no specimen from the girl were tested for any presence of spermatozoa.  There is evidence to  the fact that the girl's private parts were tempered with.  The medical evidence is not consistent with the offence of defilement.

I find the accused not guilty of the offence of defilement contrary  to Section 8(1)(2) of the Sexual Offences Act No. 3 of  2006.  And is  acquitted accordingly under Section 215 of the Criminal Procedure Code.  However, I find the accused guilty of indecent with (sic) a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 and is convicted accordingly under Section 215 of the Criminal Procedure Code.”

Thereafter, after hearing mitigating factors, the learned Senior Resident Magistrate sentenced the appellant to serve ten (10) years imprisonment.

 We shall consider the above decision later in this judgment, but it does not need much legal research to accept as we do that the above decision was clearly wrong in law and that in coming to that conclusion the learned Senior Resident Magistrate did not direct her mind to the definition of the offence of defilement under Section 8(1) as read with 8(2) of the Sexual Offences Act No. 3 of 2006.  It is also clear that the learned Senior Resident Magistrate did not consider the effect of, and give any weight to the fact that J stated in her evidence:-

“I decided to warm water to bathe her,”

and the effect that the medical examination was carried out on her on 16th November, 2008, five days after the event, and that during all that time she must have taken bath and no spermatozoa could be found.  In any event the offence is against penetration of a minor and penetration does not necessarily end in release of sperms into the victim.  Many times the attacker does not fully complete sexual act during commission of the offence.  That is the main reason why the law does not require that evidence of spermatozoa be availed.  So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl's organ.  As we have stated, we shall later revisit this finding of the Senior Resident Magistrate. Unfortunately the state did not find it a suitable case for an appeal to the High Court on points of law as is provided for at Section 348A of the Criminal Procedure Code. 

Be that as it may, the appellant, notwithstanding that he had come out very lightly  in what would have attracted life sentence had the Senior Resident Magistrate handled it well, still felt dissatisfied with the conviction for the alternative offence of indecent act with a child and a sentence of ten (10) years imprisonment.  He appealed against the same to the High Court.  That was Criminal Appeal No. 172 of 2009 at Kisii. The learned Judge Musinga, J. (as he then was), after hearing the appeal which was opposed by the state counsel who though filed no appeal or Cross Appeal, asked the learned Judge to reverse the decision of the Senior Resident Magistrate acquitting the appellant on the main charge and to convict him of the same, obliged the state counsel for in a judgment dated and delivered on 12th July, 2010, the learned Judge did just that.  He reversed the acquittal and convicted the appellant on the main charge of defilement and proceeded to sentence him to serve life imprisonment.  In doing so, the learned Judge stated as follows inter alia:-

“In the circumstances, this court, pursuant to the provisions of Section 354(3)(ii) of the Criminal Procedure Code is under a duty to alter the finding by the trial court and pass the correct sentence as by law prescribed.  I dismiss the appellant's appeal against conviction and sentence and further set aside the trial court's finding that he is not guilty of defilement but guilty of an indecent Act.  The sentence to 10 years imprisonment is also vacated.  I substitute therefor a finding of guilty of defilement contrary to Section 8(1) as read with 8(2) of the Sexual Offences Act and sentence the appellant to imprisonment for life.  Right of Appeal within (14) days from the date  hereof.”

As would be expected, the appellant was dissatisfied with that decision and hence this appeal premised on six grounds of Appeal filed by the appellant who is conducting his appeal in person.  The gist of all the grounds of appeal is in brief that the learned Judge erred in law in convicting the appellant of the offence of defilement notwithstanding that the evidence before the trial court, when properly analysed and evaluated, did not support the conviction.

 In his address to us, the appellant who conducted his appeal in person merely stated the conviction was not proper as he never committed the offence and the complainant was forced by her mother to make the allegations she made against him.

 Mr. Abele, the learned Assistant Director of Public prosecutions, whom we had asked to address us on the legality of the Judge's decisions particularly to reverse an acquittal without any appeal against the acquittal having been preferred, submitted that he did not support both conviction and sentence entered by the trial court and also did not support the judgment of the High Court.  He said that though the appellant could have been convicted but under different circumstances and provisions of the law.  He further submitted that the complainant was not cross-examined and that was a default.  He however felt that as there was evidence of penetration, the learned trial Magistrate erred in law in seeking the presence of spermatozoa before conviction.  In any event, Mr. Abele stated, the alternative charge was not properly drafted when one looks at the provisions of Sexual Offences Act No. 3 of 2006 at Section 2(1)(a).  Lastly, he stated that the learned Judge was plainly wrong in dealing with an acquittal and reversing it while there was no appeal against the same.  Neither could the learned Judge proceed under review as Section 354(2) does not provide for a review and in any case procedures that would have ended in review of the same decision had not been reactivated.

As is indicated above, a number of issues cause us serious concern in this appeal.  In our considered view, this matter was, with respect to both the trial court and the High Court, not properly handled.  We feel if it had been properly handled, justice both to the victim and to the appellant would have been done.

 It has been said over and over again that the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyse it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that.  The well known case of Okeno  vs  Republic (1977) EA 32 which sets out that principle has been referred to in several decisions of this Court and of the High Court.  In our view, it does not appear that the learned Judge was alive to those legal requirements or if he was, then he did not apparently put them into practice.

The record before us, shows clearly that complainant was properly subjected to voire dire examination at the end of which, the learned Magistrate concluded that she was intelligent and understood the duty of speaking the truth and directed her to give unsworn statement.  She gave detailed evidence but at the end of her evidence, there was no cross-examination and no explanation was availed for that omission.  The appellant was not represented and hence could not have ensured his rights were honoured.  Mr. Abele says that omission was not proper in law, and we agree.  Proviso to Section 124 of the Evidence Act states:-

“Provided where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim was talking the truth.”

One wonders how the court could verify the truth of such a witness if the witness is not cross-examined on her evidence.  Section 146(1) of the Evidence Act states:-

“146(1) Witnesses shall first be examined in chief, then if the adverse party so desires, cross-examined, then if the party, calling them so desire, re-examined.”

 In this case, as the complainant was not cross-examined, the court could not have had full evidence upon which it could decide on the veracity of the evidence. We cannot tell what the first appellate court would have done had its attention been drawn to that omission. In our mind, had the learned Judge revisited the evidence afresh, analysed it, and evaluated it, he would have certainly appreciated that glaring omission.

 However, having said as above, we still think, even if the evidence of the complainant was expunged because of that omission the trial court still had the evidence of her mother, the evidence of her grand mother, and the evidence of Victor, the clinical officer upon which the appellant could still have been convicted as there was clearly evidence of penetration of the victim's vagina with the appellant's penis and the evidence of her age being six years was not challenged. Her finding that as there was no evidence of the presence of spermatozoa, the appellant could not  be convicted of defilement, was with respect erroneous.  As we have stated, all that was required to be proved was not presence of spermatozoa, but penetration of the victim's vagina with the appellant's penis and that was clearly proved.  Further, the learned Magistrate erred in holding that the evidence of indecent act with a child under Section 11(1) of the Sexual Offences Act had been proved.  Section 11(1) states:-

“11(1)  Any person who commits an indecent Act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years,”

and in Section 2(1) indecent act is defined as

“Indecent act” means an unlawful intentional act which

  causes:-

       (a)     any contact between any part of the body of a person with the genital organ, breast or buttocks of another, but does not include  an act that causes  penetration.”

In this case all that was alleged was penetration and no any other contacts were alleged and proved.

Thus, the learned Magistrate was in the first place wrong in acquitting the appellant in respect of an offence which could have ended in a conviction even if the victim's evidence was ignored for lack of cross-examination and secondly, she was wrong in convicting the appellant for the offence that was not properly proved before her.

However, what is even more disturbing is the way the learned Judge handled the entire appeal that was before him from the decision of the learned Magistrate.  As we have stated, it was the appellant who had moved to the High Court against the decision of the Magistrate in which he was convicted for the alternative offence of indecent act with a child.  The state did not file any appeal or cross appeal against the acquittal on the main charge of defilement.  However, once the appeal was before the learned Judge, the record shows that the appellant commenced his submissions by stating that he relied on his written submissions.  Thereafter, Mr. Mutai, the learned state counsel, addressed the court at length and thus, without having filed any appeal against acquittal, was allowed to argue that the learned Magistrate was wrong in acquitting the appellant on the charge of defilement.  He contended that as that charge was proved, the court should find so and set aside the illegal sentence and mete out the appropriate sentence of imprisonment for life.  After that address which clearly raised new matters that were not covered by the appeal which was only against conviction and sentence for the offence of indecent act with a child and not against the appellant's acquittal, one would have expected the learned Judge to call upon the appellant to reply to that line of submissions and in fact to put him on notice of what the state was seeking even though there was no appeal against acquittal, and the effect of that upon the appellant.  Indeed, there was need to grant the appellant time to think over the entire appeal and to later submit in reply.  The learned Judge did none of those and infact the record shows that what followed the state counsel's submissions was the court fixing judgment date  without the appellant being granted his right to reply.  This was in our view plainly wrong.  Section 354(1) and (2) state as follows on the conduct of Appeals to the High Court in Criminal matters:-

“354(1)  At the hearing of the appeal the appellant or his advocate may address the court in support of the  particulars set out in the petition of appeal and the respondent or his advocate may then address the court.

       (2)  the court may invite the appellant or his advocate to reply upon any matters of law or fact raised by the respondent or his advocate in his address.”

The above is the law.  As the appellant was unrepresented and as the state counsel had raised matters of law namely whether the court on appeal, can reverse an acquittal notwithstanding that no appeal was preferred against it, in our view the learned Judge had an obligation to comply with the provisions of Section 354(2).  He did not and that alone would have vitiated the proceedings before him and rendered the judgment a nullity.

 Lastly and the most important is that in his judgment part of which we have reproduced above, the learned Judge purportedly relied on the provisions of Section 354(3) (ii) of the Criminal Procedure Code to reverse an acquittal and to substitute  it with a conviction.  Section 354 spells out the powers of the High Court when hearing and after hearing Criminal Appeals.  We have set out above the provisions of Section 354(1) and (2).  Section 354(3) states:-

“(3)  The court may then, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may:-

       (a) in an appeal from a conviction:-

       (i)  reverse the finding and sentence, and acquit or discharge the accused or order him to be tried by a court of competent  jurisdiction: or

       (ii)  alter the finding, maintaining the sentence, or with or without altering   the finding, reduce or increase the sentence.” (underlining supplied).

That provision does not support what the learned Judge did here.  That provision talks of the powers of the High Court in an appeal from conviction as is clearly spelt out at Section 354(3) (a) (ii).  With respect, the learned Judge's attention was not drawn to the fact that the powers contained in Section 354(3) (ii) he referred to were powers spelt out under Section 354(3) (a) and are powers to be exercised when dealing with appeals from a conviction and not appeals from acquittal.  Powers of the High Court on appeals from acquittal are spelt out in Section 354(3) (c).  These  powers would have been relevant if the learned Judge had before him an appeal from acquittal.  He had none, and the state counsel's comments which were not based on any appeal had no relevance whatsoever.

 In conclusion, from what we have stated, it will be clear that as a result of all the errors we have pointed out above, this appeal must succeed as the learned Judge with respect should not have reversed the acquittal entered by the learned Senior Resident Magistrate when there was no substantive appeal against that acquittal before him.  He should also have allowed the appellant to respond to the state counsel's submissions which in our view were irrelevant as they supported a non existent appeal.

 In allowing the appeal, we must record our displeasure at the way this matter was handled which may very well mean that a person who might have committed an offence has to be released all because the two courts below paid very little attention to the legal principles that would have ensured justice to all.  We hope and trust that hereafter  more care will prevail.

The appeal is allowed, conviction entered by the High Court is quashed and sentence of life imprisonment set aside.  As the conviction entered by the Senior Resident Magistrate had also been quashed and sentence set aside by the High Court, the appellant is henceforth set free unless otherwise lawfully held.

Dated and Delivered at Kisumu this 20th day of December 2013.

 J.W. ONYANGO OTIENO

 …........................................

 JUDGE OF APPEAL

 F. AZANGALALA

 …....................................

JUDGE OF APPEAL

S. ole KANTAI

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 JUDGE OF APPEAL