IN THE COURT OF APPEAL AT ELDORET (CORAM: E. M. GITHINJI, HANNAH OKWENGU & J. MOHAMMED, JJ. A.) CRIMINAL APPEAL NO. 90 OF 2016 BETWEEN ELIAS NYONGESA MAKENZI......................APPELLANT AND REPUBLIC......................................................RESPONDENT (Appeal from the judgment of the High Court of Kenya at Eldoret (Ngenye, J.) delivered on 30th October, 2014 in HCCRA NO. 201 OF 2011) ***************** JUDGMENT OF THE COURT [1] This is a second appeal lodged by Elias Nyongesa Makenzi (appellant). He was first tried and convicted by the magistrate’s court in Eldoret of the offence of defilement of “FC”, a child aged seven (7) years contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. He was sentenced to serve life imprisonment. [2] Being aggrieved, he appealed to the High Court against his conviction and sentence. His appeal was heard and dismissed by the High Court (Ngenye J). The appellant is now challenging the High Court judgment on four (4) grounds of appeal contending that: the learned judge erred in failing to consider that the appellant was not examined by the doctor; the learned judge failed to take into account that the medical officer who testified is not the one who examined the complainant or who treated her; and that the learned judge shifted the burden of proof to the appellant. [3] During the hearing of the appeal, the appellant filed written submissions, which he relied upon. In short, the appellant contended that the prosecution evidence was riddled with contradictions; that the evidence of the complainant’s mother was not consistent with the evidence of the complainant; that during cross-examination, the mother contradicted her evidence in chief; that Dr Cynthia Chebet who testified that she examined the complainant did not establish that she was the Doctor who examined the complainant and whose name was indicated on the P3 form as Dr Kibet; and that Dr Chebet’s evidence was not consistent with the P3 Form that she purported to have filled nor was it consistent with the evidence of the complainant’s mother. [4] Further, the appellant argued that the trial magistrate failed to carry out a voire dire examination before accepting the evidence of the complainant; and that the trial magistrate did not comply with the provisions of section 19(1) of the Oaths and Statutory Declarations Act. The appellant relied on Michael Muriithi Kinyua vs Republic Criminal Appeal No 38 of 2002 Nyeri on the procedure of taking the evidence of a child. He submitted that the trial magistrate did not follow that required procedure. [5] In addition, the appellant argued that the prosecution did not carry out proper investigation; that he was not taken for any medical examination nor was any DNA or any other forensic examination done to ascertain whether he (appellant) was in any way connected with the offence; that the scene was not visited nor were the complainant’s clothes produced as exhibits, and that the prosecution evidence fell short of the required standard. [6] In regard to the ingredients of the offence, the appellant submitted that penetration involves the insertion of a genital organ into another, that such penetration would result in the breaking of the hymen; the discharge of sperms or spermatozoa; discharge of vaginal fluid; injuries
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in the vagina; tenderness between labia minora and labia majora; wet substance on the clothes of the complainant; and torn clothes. He pointed out that the complainant’s hymen was found intact, which was an indication that there was no penetration; and that there was no evidence of partial penetration. [7] Finally, the appellant maintained that his defence was not considered; that the trial magistrate improperly shifted the burden of proof to him; that the trial court failed to appreciate that the case against him was actually a frame up in a bid to prevent him from claiming his salary arrears for 3 months, which the complainant’s mother owed him; and that the complainant’s father who was entrusted to take care of the complainant in her mother’s absence was not called to testify. [8] Mr. Zachary Omwenga, learned Senior Assistant Deputy Public Prosecutor opposed the appeal. He submitted that the minor complainant was able to identify the appellant as she knew him well; that the minor also gave a detailed eye witness account of how the offence was committed; that the age of the minor complainant was proved through production of a clinic card; that the Doctor who examined the complainant confirmed that she had injuries on her private parts; that although the minor’s hymen was intact, it was evident that there was partial penetration; and that under Section 124 of the Evidence Act, corroboration of the complainant’s evidence was not required. [9] We have carefully considered this appeal and the submissions made by the respective parties. The appeal before us is a second appeal and therefore by virtue of section 361 (1) of the Criminal Procedure Code it is restricted to matters of law only. (See also M’Riungu v Republic [1983] KLR 455). [10] In our view, the appeal has raised several issues of law that we have reduced to four issues. First, whether the first appellate court properly discharged its role in re-evaluating the evidence that was adduced before the trial court and arriving at its own conclusion? Secondly, whether the testimony of the minor complainant was properly admitted in evidence, and whether the same could be relied upon without corroboration? Thirdly, is whether the ingredients of the offence of defilement were established? Finally, whether the appellant’s defence was improperly rejected? [11] The duty of a first appellate court was clearly set out in Okeno v Republic [1972] EA 32 that: “The first appellatte court must weigh conflicting evidence and draw its own conclusion (Shatilal M. Ruwala vs R [1957] EA 570. It is not the function of a first appellate court merely to scrutinize the evidence to see if there were some evidence to support the lower court’s findings and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court had the advantage of hearing and seeing the witnesses (See Peters vs Sunday Post [1958] EA 424).” [12] It is clear that the learned judge in the first appellate court was alive to her duty. She commenced her determination by first reevaluating the evidence on record stating: “I will consider the first and second issues together because they relate to the weight of evidence and whether the same, crystalized together proved the case beyond reasonable doubts. This calls for evaluation of the entire evidence”. [13] The learned judge then proceeded to consider the evidence of each of the four (4) witnesses who testified for the prosecution, as well as the sworn statement of defence given by the appellant. Noting that the minor complainant was the only eye witness the learned judge found that her evidence was consistent with that of her mother (PW2) and that of the doctor who examined her after the incidence. [14] It is clear that the learned judge properly discharged her obligation in re-evaluating the evidence on record and drawing her own conclusions. In part, the learned judge made the following conclusion: “(PW1) story was thus consistent and did not change no matter who she was narrating to. There is no reason why the trial court should have doubted her. I also do not have any reason to doubt that she gave a true account of what transpired between herself and the appellant who she knew very well and was thus her acquaintance”. [15] In regard to the ingredients of the offence of defilement of which the appellant was charged, it was necessary for the prosecution to prove that the complainant was a minor aged seven (7) years; that there was penetration or partial penetration of her genital organs; and that the penetration or partial penetration was caused by the partial or complete insertion of the appellant’s organs into the complainant’s organs. [16] Apart from the complainant’s testimony, wherein she stated that the appellant removed her underpants and had sex with her and that she felt pain, the complainant’s mother testified that the complainant’s private parts were sore, and Dr. Chebet who examined the complainant found that although her hymen was intact, her hymiral ouvix was wide open which was an indication that there had been an attempt to penetrate the hymen. This evidence confirmed that there was partial penetration of the complainant’s genital organs that did not result in the breaking of the hymen. Contrary to the appellant’s submissions, the offence of defilement is complete even where there is only partial penetration that does not result in the breaking of the hymen. [17] The failure to take the appellant for DNA examination or forensic examination, did not in any way weaken the prosecution case because the complainant clearly identified the appellant as the perpetrator of the offence. Both the trial magistrate and the judge in the first appellate court addressed the issue of the admission of the complainant’s evidence, and both were satisfied that she spoke the truth and that her evidence could properly be admitted without corroboration under section 124 of the Evidence Act. [18] Further, it is clear from the record of the trial court that the complainant was subjected to a voire dire examination and she appeared to understand the importance of speaking the truth. We therefore find no substance in the appellant’s contention that the provisions of section 19(1) of the Oaths and Statutory Declarations Act were not complied with.
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[19] In regard to the evidence of Dr. Chebet, although the P3 form indicates her name as Dr. Kibet and the court record as Dr. Chebet, it is evident to us that both refer to the same doctor who examined the complainant and who testified before the trial court. The difference resulted from the spelling and understanding of the name by the trial magistrate. We reject the appellant’s contention that the person who testified was not Dr. Kibet. [20] We come to the conclusion that the appellant’s defence was properly rejected as there was sufficient evidence adduced by the prosecution that proved the case against the appellant to the required standard. On the sentence, the appellant was sentenced to life imprisonment which was the sentence provided under section 8(2) of the Sexual Offences Act. The appellant has not raised any issue before us regarding the legality of this sentence. Accordingly, we find no substance in this appeal and do dismiss it in its entirety. Dated and delivered at Eldoret this 31st day of May, 2018. E. M. GITHINJI ................................... JUDGE OF APPEAL HANNAH OKWENGU .................................... JUDGE OF APPEAL J. MOHAMMED .................................... JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR.
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