REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII Criminal Appeal 10 of 2011 CALEB MAKORI ARASA …………………….………………………. APPELLANT AND REPUBLIC …………………………………………………………… RESPONDENT (Being an appeal from the judgment of Honourable Njeri Thuku, RM, in Kisii CM’s court in criminal case No.1538 of 2010 delivered on 14th January, 2011 REASONS FOR THE JUDGMENT 1. On 30th December 2011, I delivered judgment in this case allowing the appellant’s appeal against the original conviction and sentence of the trial court in Kisii CMCCR Case No.1538 of 2010 delivered on 14th January 2011. 2. The prosecution case was anchored on the evidence of the complainant, DK, who testified as PW2. She testified that at about 7.00 p.m., she met the complainant near Birongo Primary School on her way to see her aunt. He took her to his workshop and defiled her between 8.00 p.m. and 9.00 p.m. The complainant gave sworn evidence and said that the appellant used trust condoms as he defiled her. She said that during the ordeal, she tried to cry but could not although the appellant had not covered her mouth. After the ordeal, the appellant let her out of the workshop. Out there, she met two men who took her to the house of a lady by the name Fridah where she spent the rest of the night. On the following morning, the complainant took Fridah to where she had been defiled. With the help of Fridah, the complainant made a report to the police where she recorded her statement. 3. At the police station, the report was received by No.79559 Corporal James Nzioka on the 19th August 2010 at about 8.30 a.m. Cpl. Nzioka interrogated the complainant about the events of 18th August 2010. The appellant had also been arrested and brought to the police station together with the complainant. Cpl Nzioka went to the scene in the company of the complainant and the appellant and from there they recovered the complainant’s under pant together with the condoms which the appellant had used as he defiled the complainant. 4. Cpl. Nzioka also took the complainant to Masaba sub district hospital for examination and filling of the P3 form. Cpl Nzioka said that the complainant positively identified the appellant as the person who had defiled her. During cross examination, Cpl Nzioka denied a suggestion by the appellant that the complainant could have slept with another man. 5. Joel Ongoro, a registered clinical officer testified as Pw1. He is the one who examined the complainant on 20th August 2010. His findings are that her genitalia were normal and that he saw no
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bruises though her hymen was broken. HIV and Syphilis tests were negative though there was sperm presence. The P3 form on the complainant was produced as P. Exhibit 1 while the treatment notes were produced as P. Exhibit 2. PW2 also examined the appellant and found no bruises on his penis, an indication that the sexual act complained of was not forceful. All laboratory tests on the appellant were negative. The P3 form on the appellant was produced in evidence. During cross examination, PW1 stated that the only reason why he believed the complainant had been defiled was the presence of sperms in her vagina. According to the treatment notes, the complainant said she was defiled by a person unknown to her. 6. PW3 was Joyce Moraa Ongwae, an aunt to the complaint. She testified that she got to hear about the complainant having been defiled on 18th August 2010 at about 9.00 a.m. She followed the complainant to Birongo police station. She also found the appellant whom the complainant identified as her defiler. 7. At the close of the prosecution’s case, the appellant was put on his defence. The appellant elected to give sworn evidence. He testified that he lives at Birongo where he also operates a carpentry shop. On 19th August 2010, while he was at his shop, he was arrested by Administrative Policeman after allegations that he sold alcohol. He was placed in cells until Friday 20thAugust 2010. He was asked to bribe his way out by paying Kshs.8000/=, but when he refused to do so he was arraigned in court on a charge he knew nothing about. The appellant questioned the discrepancy between the evidence of the clinical officer who said there was sperm in the complainant’s vagina and the testimony of the complainant who said her defiler used a condom. 8. During cross examination, the appellant stated that he was married and lived with his wife and two children at Birongo market in rented accommodation for which he pays Kshs.1200/= a month. He also said that on 18th August 2010, he slept in his house at Birongo. He also said that he was taken to the police station so as to settle his differences with his landlord after he (appellant) told the police that the landlord brews and sells changaa. 9. On analyzing the evidence on record, I find that the prosecution did not prove its case beyond any reasonable doubt against the appellant. First, I note that there is no indication on the record that the complainant, who was said to be 14 years of age, was taken through a voire dire examination. This court is not sure of how the trial court reached the conclusion that the complainant should give sworn evidence without first of all conducting a voire dire examination. Voire dire examination is an important step in the taking of evidence of minors. See the case of Johnson Muiruri –vs- Republic [1983] KLR 445. 10. Secondly, I find that there were material contradictions in the prosecution’s evidence. Whereas the complainant said that her defiler used a condom during the one hour ordeal, the clinical officer testified that sperms were found in the complainant’s vagina. Nowhere in her testimony did the complainant say that the condom which the appellant is alleged to have used either came off or was removed by the appellant. This contradiction casts doubt on the testimony of the complainant. 11. Further, the complainant stated in her evidence in chief that she met the appellant at about 7.00 p.m. on 17th August 2010 near Birongo primary school as she made her way to her aunt’s place. She stated that she knew the complainant as Makori yet when the complainant went to the hospital she said she was defiled by a person unknown to her. 12. It is trite law that for a conviction to ensue upon any evidence, such evidence must prove the case against an accused person beyond any reasonable doubt. The evidence adduced by the prosecution in this case left many lingering doubts in my mind, and it was because of these doubts that I allowed the appeal, quashed the conviction and set aside the sentence of 15 years imprisonment. 13. Finally, and as correctly submitted by counsel for the respondent, it was not proper for the trial court to convict the appellant on the alternative charge without properly weighing the evidence in support of the main charge. In addition, it was not clear from the evidence how the appellant was arrested and who made the report of the incident to the police.
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Dated and given at Kisii this 7th day of September, 2012 RUTH NEKOYE SITATI JUDGE In the presence of: In person (absent) for Appellant Mr. Mutai (present) for Respondent Mr. Bibu - Court Clerk RUTH NEKOYE SITATI JUDGE.
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