Kitui v Republic

6. Aggrieved further, the appellant appealed to this Court on the grounds that the High Court fell into error when it armed the trial court’s decision, yet the essential elements for the oence of delement, particularly penetration, were not conclusively proved; in failing to take into account that he was denied access to the prosecution witnesses statements before the case commenced, which violated his constitutional right to a fair hearing; in failing to nd that the fact of penetration was not corroborated; in acting upon a defective charge sheet and failing to appreciate that the trial proceedings were invalid; in nding that the prosecution did not prove its case beyond reasonable doubt as by law required. 7. The appellant, who appeared in person, led written submissions where he contended that the oence of delement was not proved to the required standard since the three elements of penetration, the age of the child and whether the appellant was responsible for deling the complainant, were not established. 8. On the question of penetration, the appellant contended that the complainant did not state that the appellant was responsible for her injuries; that she only stated that “…somebody did me bad manners”; that the court observed that the complainant was traumatised; that if she was unable to explain what transpired, then the court was not capable of satisfying itself that the complainant was being truthful; that consequently, the trial magistrate should not have relied on section 124 of the Evidence Act to concluded that penetration occurred. The appellant further argued that the description given by the child that the appellant did “bad manners” to her was not enough to allow the court to nd that the complainant was deled. The appellant relied on the case of Luka Kanyita Mwai vs Republic [2020] eKLR for the proposition that the description given by the child of what the appellant had done to her was vague and did not prove penetration. The appellant went further to submit that the the medical documents tendered by Dr. Sultan Sherman PW3 did not prove that penetration had occurred and, therefore, nothing corroborated CKM’s evidence that there was penetration. 9. On the second ground, the appellant submitted that his right to a fair hearing as guaranteed by Article 50 of the Constitution was violated, as he was not supplied with all the witness statements; that further, his request for PW1 to be recalled was disregarded. 10. The appellant also asserted that the charge sheet was defective because he was charged contrary to section 8 (1) and (2) of the Sexual Offences Act, which provision did not exist. 11. Whilst highlighting his submissions, the appellant also prayed that the sentence be reduced or that a non-custodial sentence be imposed as he was HIV positive, and had been a model prisoner; that his illness was aecting him and he wanted to be with his family. 12. Opposing the appeal, learned counsel for the State also led written submissions. Highlighting them, counsel stated that the complainant’s evidence was corroborated by her mother PW 1, who stated that while she was bathing her daughter, she saw injuries and blood stains on her private parts; that on enquiring, the complainant told her that she had been deled by the appellant; that the trial magistrate had found the complainant to be truthful and had admitted the evidence under section 124 of the Evidence Act; that the appellant did not cross examine the complainant or challenge her evidence. 13. With respect to his identity, counsel submitted that the appellant was their neighbour, and was known to the complainant; that penetration was demonstrated by the complainant, and the medical evidence also was supportive of her evidence. 14. Regarding the complainant’s age, PW1 and the medical ocer who examined CKM conrmed that she was age 6 ½ years old. The trial magistrate conducted a voire dire examination and found that the complainant was too young to be sworn, as a consequence of which age was proved. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/713/eng@2022-07-22 2

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15. On the sentence, counsel urged that we decline to interfere with the sentence given the Supreme Court’s guidelines of 6th July 2021 issued pursuant to the case of Francis Karioko Muruatetu and another vs Republic [2017]eKLR. Counsel concluded by asserting that the evidence of the prosecution witnesses rendered the conviction safe and that the High Court had properly discharged its duty. 16. This being a second appeal, the duty of this Court in appeals of this nature was set out in the case of Kaingo vs Republic, (1982) KLR 213 at p. 219 thus; “ A second appeal must be conned to points of law and this Court will not interfere with concurrent ndings of fact arrived at in the two courts below unless based on no evidence. The test to be applied on second appeal is whether there was any evidence on which the trial court could nd as it did (Reuben Karari C/O Karanja -vs- R (1956) 17 EACA 146)”. 17. Hence the issues for consideration are; i) Whether the charge sheet was defective; ii) Whether his constitutional right to a fair hearing was violated as he was denied access to the prosecution witness statements before the case commenced; iii) Whether the oence of delement was proved; and iv) Whether at the fact of penetration was corroborated. 18. We begin with whether his right to a fair hearing pursuant to Article 50 of the Constitution was violated when he was allegedly denied the witness statements and an opportunity to recall PW1. At the outset however, we observe that these issues were not raised before the High Court. 19. Related to this, in the case of Isaac Kinyua Thuku & 2 others vs Republic [2019] eKLR this Court observed that; “ In any event it is inappropriate to raise a new matter which was not subjected to an opinion of the two courts below as a ground of appeal. That would amount to litigation in instalments. This Court in Alfayo Gombe Okello v R. [2010] eKLR had this to say as regards such an issue: “…the issue was not raised since the trial began and was only raised for the rst time in this second appeal. The appellant gave no reason for failure to do so earlier. We must therefore nd, and we now do so, that it was not raised at the earliest opportunity although it could and should have.” 20. The appellant has sought to raise the issue of witness statements and witness at this late stage before this Court yet, no High Court decision has been rendered, from which an appeal has emanated for our determination. As such, we ought to decline the invitation to determine them. 21. But having regard to the circumstances of the case, we have analysed the proceedings and nd that on 27th April 2011, the appellant requested for witness statements after the trial had commenced. The trial court ordered that the “Accused to be supplied with witness statements before the next hearing…” At the next hearing on 11th May 2011, the appellant stated that he was not ready to proceed. He sought an adjournment, and at the same time, requested to recall PW1. Since the prosecution did not object to the applications, the court granted the adjournment, though no specic orders were made. Thereafter, the case came up for hearing on three subsequent occasions, all of which were adjourned because the https://new.kenyalaw.org/akn/ke/judgment/keca/2022/713/eng@2022-07-22 3

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appellant was either not in court or not ready to proceed. When he eventually attended court on 10th June 2011, the prosecutor indicated that he would call two witnesses. For his part, the appellant had no objection and in fact indicated that he was ready to proceed. No mention was made either of the witness statements, or the request to recall PW1. By the close of the proceedings, PW1 was not recalled, and neither did the appellant raise the issue before the trial court. 22. The inference that can be drawn from this is, rstly, the appellant must have received the witness statements as ordered by the court, and if he had not, he would have objected to proceeding without them. But he did not. For this reason, we consider the complaint to be unfounded and an afterthought. 23. Secondly, on recall of PW1, his willingness to proceed with the other prosecution witness testimony would be an indication that he no longer wished to recall PW1 for cross examination. Section 146 (4) of the Evidence Act provides for recall of witness by parties in the following terms; “ The Court may in all cases permit a witness to be recalled either for further examination in Chief or for further cross-examination, and if it does so the Parties have the right of further cross- examination and re-examination respectively.” In the case of Patrick Mutwiri vs Republic [2018] eKLR “ Considering that the magistrate in this case exercised that discretion in favour of the appellant and ordered a recall of the said witnesses, it behooved the appellant to follow up on having the said witnesses availed for his cross examination. Instead, he went quiet and the record shows the defence as having proceeded as though no such order had been made. In addition, the appellant never raised the said issue at the rst appellate court. This court has in the past stated that where issues of fact fail to be raised at the trial court and at the rst appellate court, this court lacks the benet of having read the reasoning of those courts on the matter and will thus hesitate to interfere with their ndings (see Abdalla Hassan Hiyesa v Republic [2015] eKLR and Joseph Kamau Gichuki v Republic [2013] eKLR as well as S J M v Republic [2016] eKLR).” 24. Having neglected to recall PW1, despite the court acceding to his request, and thereafter failing to raise the complaint in the High Court, the appellant cannot now require this Court to delve into the merits or demerits of the oversight on his part. We would add that the record shows that the appellant had occasion to actively cross examine PW1 during the proceedings and, as such, we are not prepared to hold that he suered any signicant violation that can amount to unfair trial. We nd that raising the issue at this stage was an afterthought, and we accordingly dismiss it. 25. As concerns the alleged defective charge sheet, the appellant’s contention is that he was charged contrary to section 8 (1) (2) of the Sexual Offences Act, which provision did not exist. When the issue was addressed by the High Court, notwithstanding that the judge agreed that indeed no such provision existed in the Sexual Offences Act, the court concluded that no prejudice was suered by the appellant on account of the error since the charge sheet was explicit on the nature of the oence he faced. 26. It is true that the charge sheet stated that the appellant was charged contrary to section 8 (1) (2) of the Sexual Offences Act. In eect, it ought to have read “…section 8 (1) as read with Section 8 (2) of the Sexual Offences Act.” However, the particulars of the oence are distinctly supportive of the charges so that it was clear to the appellant that the oence he faced was the delement of a girl aged 6 ½ years. The error in the charging provisions was not fatal and neither was it prejudicial to him. Further, it was capable of being cured by section 382 of the Criminal Procedure Code, which provides that the nding https://new.kenyalaw.org/akn/ke/judgment/keca/2022/713/eng@2022-07-22 4

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of a court of competent jurisdiction will not be reversed or altered on account of an error or irregularity in the charge. This ground is therefore dismissed. 27. The next issue was whether the prosecution proved its case to the required standard. For this to be established, the key ingredients for the oence of delement are, namely the complainant’s age, the appellant’s identity and whether there was penetration, which must have been proved. 28. Before ascertaining them, an outline of the facts is essential. The evidence of PW 1 the complainant’s mother was that, CKM who was 6 ½ years old at the time, is her daughter; that on the 26th February 2011 at about 5 pm when she was bathing her, she saw injuries and blood stains on her daughter’s private parts; that on enquiring, CKM told her that she had been deled by their neighbour, K, the appellant. PW2 also stated that the appellant had done bad manners to her, and that it occurred on two occasions, that is, on the 24th and 25th February 2011. PW 1 reported the incident to the police station, and they were thereafter escorted to Bura Healthcare Centre for treatment. Dr. Sherman, examined her and found that her hymen was not intact. She concluded that there was penetration, as the complainant was in pain. She produced a P3 form. PC Reuben Mwaniki was PW4. He investigated the case and reiterated the evidence of PW 1 and PW 29. In his defence, the appellant gave sworn evidence and denied having committed the oence, he stated that PW 1 was his girlfriend and he conrmed that CKM who was 6 ½ years old was his neighbour, and would normally go to visit him. 30. Against this background, we now address the age element. In his defence, the appellant admitted that CKM was 6½ years old. The complainant’s mother, PW1 clearly stated that the complainant was 6 ½ years old, as she was born on 6th August 2004. She was a pupil in pre-unit. PW2 also stated that she was 6 years old. And Dr. Sultan Sherman, the medical doctor who examined her also conrmed that she was 6 ½ years old. In view of the certainty of the complainant’s age, we are satised that her age was proved. 31. As concerns the identication of the appellant, CKM stated that the appellant was a neighbour and that she knew him. The appellant did not deny that he also knew her. He went so far as to admit that the complainant would often visit his house. Based on this evidence, there is no doubt that the appellant was properly identied. 32. On whether penetration was proved, the appellant’s complaint is that, CKM’s evidence did not specically indicate that the appellant was responsible for her injuries; that she only stated that “… somebody did me bad manners”; that the description given by the child that the appellant did “bad manners” to her was not enough for the court to reach a nding that she had been deled. 33. A reanalysis of the evidence denitively points to the appellant as being the person who deled the complainant. We say this because, when her mother PW 1, was bathing CKM, she saw injuries and blood stains on her daughter’s private parts; that on enquiring, CKM told her that she had been deled by the appellant, K, who had done bad manners to her. This evidence was fortied by Dr. Sherman’s medical report, that found her hymen was not intact, and concluded that there was penetration. In its totality, the prosecution evidence demonstrated that penetration occurred, and that it was the appellant who deled CKM. 34. The appellant complains that CKM’s evidence of penetration was not corroborated, since she did not state that the appellant had deled her; that the trial magistrate ought not to have applied section 124 of the Evidence Act to conclude that the complainant was truthful when in fact she had not stated that she was deled by the appellant. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/713/eng@2022-07-22 5

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35. Addressing the specics of Section 124 of the Evidence Act, the High Court had this to say; Once the magistrate believed that the complainant was telling the truth, he was entitled to rely on her evidence and arrive at a conviction on the same without the need for corroboration. All he needed to do was to record in the proceedings the reasons as to why he believed that the complainant was telling the truth.” 35. And after concluding that the complainant was truthful, the trial magistrate stated; During the testimony I observed her demeanour and the only thing I noticed was that she was traumatized. I did not note anything which would suggest that she is not telling the truth or that she was acting under inuence.” 36. The appellant seeks to argue that the trial magistrate reliance on section 124 of the Evidence Act was superuous because, CKM did not provide any evidence of penetration and that, therefore, her evidence should have been corroborated. As did the High Court, we have no hesitation in concluding that CKM’s evidence was cogent, believable and demonstrated that the appellant had deled her. This notwithstanding, we also nd that it was duly corroborated not only by her mother PW1, but also by the medical doctor as well. Clearly, reliance on CKM’s evidence by the trial magistrate in accordance with section 124 of the Evidence Act served to further reinforce the prosecution’s case, that the appellant deled CKM. 37. We need go no further than to quote the judgment of the High Court in extenso thus; The fact that the complainant was deled was corroborated by the evidence of her mother PW 1… She told the court that on 26th February, 2011 she was washing her daughter when she complained of pain in her private parts. She checked her vagina and saw injuries on the vaginal wall. She also saw blood. She then enquired from her what had happened and she informed her that her neighbour by the name K had caused the injuries to her. The child further informed her that the assault had taken place on two dierent days namely 24th February, 2011 and 25th February, 2011. The evidence of PW 1 was conrmed by the medical ocer PW3 Dr. Sultan Sherman who testied that there was evidence of fresh penetration. The evidence adduced before the trial court conrmed delement. The delement was linked to the appellant by the evidence of the complainant”. 38. Though the appellant denied committing the oence, having considered all the prosecution evidence, it cannot be controverted that the ingredients for the oence of delement were proved with the result that they pointed to the appellant as the person who deled the complainant. As such, we nd the conviction was safe and we uphold the decisions of both the trial court and the High Court. 39. Finally, with respect to the sentence, the trial court sentenced the appellant to life imprisonment as by law prescribed. As a consequence, the sentence was lawful. By dint of section 361(1) of the Criminal Procedure Code, this Court has no jurisdiction to entertain appeals on severity of sentence. After appreciating the appellant’s mitigation, and observing the extent of the trauma the child experienced at the appellant’s hands, the trial court imposed the sentence of life imprisonment. We have no basis upon which to interfere with that decision. 40. In view of the foregoing the appeal is dismissed in its entirety. It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/713/eng@2022-07-22 6

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DATED AND DELIVERED AT NAIROBI THIS 22ND DAY OF JULY, 2022. A.K. MURGOR …………………………… JUDGE OF APPEAL A. MBOGHOLI MSAGHA …………………………… JUDGE OF APPEAL DR. K.I. LAIBUTA …………………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/713/eng@2022-07-22 7

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