Guantai v Republic

5. The prosecution called ve (5) witnesses to prove its case including the minor complainant. In a nutshell, the complainant testied that on September 23, 2009, she was 7 years old and that at about 6pm she was sent by her mother to the river with her brother AK (PW2) to fetch water. It was her evidence that while there, the appellant held her hand and dragged her to the bush where he deled her. 6. PW2 testied that on the material date, he accompanied PW1 to fetch water from the river. That they found the appellant at the river and that he pulled PW1 to the bushes. It was PW2’s further testimony that he ran to get help and met Joseph Barui (PW3) and Fredrick Gichunge (PW4) on the way. PW2 informed them that the appellant had dragged PW1 to the bushes. That together with PW3 and PW4 they went to the scene and found the appellant lying on PW1 who did not have her clothes on and that the appellant ran away on seeing them. That the appellant was thereafter arrested. 7. PW3 testied that on the material day he was in the company of PW4 when they met PW2 who informed them that the appellant had taken PW1 and wanted to kill her. He testied that they went to the scene and found the appellant lying on PW1. That the appellant had removed his trousers and pants half way to his knees while PW1 did not have her clothes on. That the appellant ran away on seeing PW2, PW3 and PW4. It was his testimony that he recognized the appellant and had known him since childhood. That he and PW4 reported the matter at Mbeu Police Post and the appellant was arrested. In cross examination, PW3 testied that he saw the appellant deling the complainant and that he had no grudge against the appellant. 8. PW4 testied that on September 23, 2009he was in the company of his neighbour, PW3. That on their way to check on his cattle they met PW2 who was crying and who informed them that a man had kidnapped PW1. They followed PW2 to the scene where they found the complainant and the appellant on the ground. The appellant was lying on the complainant who did not have her pants on. The appellant ran away when he saw PW2, PW3 and PW4. 9. Martha Njeri (PW5) testied that she was a Clinical Ocer at Mbeu District Hospital. That she examined PW1 and noted that she had sustained a human bite on the left cheek; that her hymen was broken; that there was inammation of the labia; and that there was a whitish discharge on her external genitalia. 10. When placed on his defence, the appellant gave a sworn statement and denied committing the oence. He testied that he had been framed by his stepmother in conspiracy with PW1’s father to enable his stepmother disinherit him while he was in custody. 11. The trial court convicted the appellant and sentenced him to life imprisonment. Aggrieved by that decision, the appellant led a rst appeal to the High Court. 12. The High Court (Kiarie Waweru Kiarie, J.) was satised that based on the overwhelming evidence on record, the appellant’s conviction and sentence were well founded and thereby dismissed the rst appeal. 13. Undeterred, the appellant led an appeal to this Court on the grounds inter alia that the prosecution evidence was riddled with multiple contradictions; that the identication of the appellant by PW1 and PW2 was dock identication and was an afterthought as no report was made with the appellant’s names to the police; that the complainant’s torn clothes were not exhibited in court; that the identication and recognition of the perpetrator by PW3 and PW4 was from the back and was therefore not reliable; that the appellant’s defence was not considered; that there was a grudge between his stepmother and PW1’s father; and that vital witnesses such as the investigating ocer were not called to testify. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1261/eng@2022-11-18 2

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Submissions 14. At the hearing of the appeal, the appellant was unrepresented and relied on his written submissions and did not wish to orally highlight the same. In his written submissions, the appellant submitted that the prosecution case was not proved to the required standard; that the evidence of the prosecution witnesses was riddled with inconsistences; that the evidence of PW3 and PW4 was unreliable as they saw the perpetrator from the back; that there was a grudge between his stepmother and PW1’s father and he was framed to enable his stepmother disinherit him; and that the identication by PW1 was not free from error. 15. Mr. E. Masila, learned counsel for the State had not led written submissions but was allowed to orally submit. Counsel submitted that there were no material contradictions in the prosecution evidence. That all the prosecution witnesses were reliable and corroborated each other in all material aspects. Counsel emphasized that PW2, PW3 and PW4 all saw the appellant lying on the complainant. That they were village mates and they saw him in the act of deling the complainant. Counsel urged us not to interfere with the concurrent ndings of the two lower courts. 16. Counsel submitted that the appellant’s defence was considered by the two courts below and that all witnesses testied in accordance with the Sexual Offences Act. Counsel submitted that it was not mandatory for the investigating ocer to testify in the circumstances of this case. Counsel urged us to dismiss the appeal for lack of merit. Determination 17. We have carefully considered the appeal, the submissions, the authorities cited and the law. Sections 8(1) and 8(2) of the Sexual Offences Act provide that: “ 8. 18. 19. (1) A person who commits an act which causes penetration with a child is guilty of an oence termed delement. (2) A person who commits an oence of delement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” The appellant was charged with the oence of delement. It is now settled law that to warrant conviction for an oence of delement under section 8(1) of the Sexual Offences Act, three elements should be satised before conviction of an accused person can arise. These are penetration, apparent age of the victim and identity of the perpetrator. In John Mutua Munyoki v Republic [2017] eKLR, this court stated that three critical ingredients need to be proved by the prosecution in a charge of delement:1. The age of the victim; 2. Proof of penetration; 3. Proof of the identity of the perpetrator In the circumstances of this case, the prosecution was required to prove that the victim was below the age of 11 years at the time of the commission of the oence; and that the appellant committed an act which caused penetration with a female person who to his knowledge was a minor. As for the complainant’s age, it is common ground that the age of the victim is an essential ingredient of the https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1261/eng@2022-11-18 3

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oence of delement and forms an important part of the charge as the prescribed sentence is dependent on the age of the victim. In the case of Hadson Ali Mwachongo v Republic [2016] eKLR the court stated that: “ The importance of proving the age of a victim of delement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the oence of delement and forms an important part of the charge because the prescribed sentence is dependent on the age of victim.” 20. In our evaluation, the issues arising for determination in this appeal are whether the charge against the appellant was proved to the required standard; whether there were material contradictions in the evidence that ought to have been resolved in favour of the appellant; and whether the essential witnesses were called to testify. 21. On the question of proof of penetration, it is clear from the record that the complainant’s testimony was corroborated by medical evidence. It was conrmed by the Clinical Ocer (PW5) that the medical examination on the complainant revealed that her hymen was torn and that there was inammation of the labia majora and vagina. PW5 was of the opinion that there was penetration and she produced the P3 form. 22. Regarding identication of the appellant, the complainant identied the appellant as the person who deled her. It was a case of identication by recognition as the appellant and PW1 lived in the same village. PW2 also recognized the appellant and knew him by name. PW3 and PW4 who were both adults identied the appellant and corroborated the evidence of PW1and PW2, having found him in the act of deling the complainant. The 1st appellate court accepted the complainant’s identication of the appellant as the perpetrator reliable. The trial court believed and accepted the complainant’s testimony as truthful and stated as follows: “ The complainant gave clear and consistent evidence and having observed her demeanor, I am satised that she spoke the truth.” 23. On the question of the age of the complainant, we nd that the same was proved by the evidence of PW1. Further, the P3 form produced in court by PW5 indicated the approximate age of the complainant as 7 years. The treatment card which was also produced in court indicated that the complainant was 7½ years. 24. On the question whether the sucient number of witnesses were called. Section 143 of the Evidence Act provides: “ No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.” In the circumstances, we are satised that the prosecution called the witnesses required to prove its case. 25. On the failure to call the investigating ocer, from the record, the investigating ocer did not feature anywhere in the proceedings. As held by this court in Simiyu v Republic [2021] eKLR: “ We agree that the investigating ocer was not called. Neither did he feature anywhere in the proceedings…Calling such an investigating ocer as a witness would not have added value to the prosecution case as such witness would simply have narrated to court the events as narrated by PW2 [the complainant’s mother]. We therefore nd no miscarriage of https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1261/eng@2022-11-18 4

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justice was occasioned to the appellant by the failure to call that witness due to the peculiar circumstances surrounding the commission of the oence as aptly narrated by PW2.” 26. By parity of reasoning, the evidence of PW1, PW2, PW3 and PW4 was provided overwhelming evidence against the appellant and was consistent with the evidence of the clinical ocer, PW5. PW3 and PW4 who were both adults and who both recognized the appellant, found him in the act of deling the complainant. An investigating ocer’s evidence would therefore not have added much value in the peculiar circumstances of this case. We therefore nd that the appellant was not prejudiced at all by the failure to call the investigating ocer. 27. We are satised that all the ingredients of the oence of delement were established to the required standard and that the concurrent ndings of the two courts below were based on credible evidence. 28. From the foregoing, we are satised that in light of the overwhelming evidence adduced against the appellant, his defence denying having committed the oence was properly rejected. His conviction was therefore sound. 29. Having found that the elements for the oence of delement have been proved beyond reasonable doubt, we nd no basis to interfere with the ndings of the trial court as upheld by the High Court. The upshot of the foregoing is that the appeal is accordingly dismissed. DATED AND DELIVERED AT NAIROBI THIS 18TH DAY OF NOVEMBER, 2022. HANNAH OKWENGU ................................. JUDGE OF APPEAL ASIKE-MAKHANDIA ................................. JUDGE OF APPEAL J. MOHAMMED ................................. 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/2022/1261/eng@2022-11-18 5

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