REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITALE CRIMINAL APPEAL NO 7 OF 2013 JOSEPH NYONGESA EDWIN……….……………………………APPELANT VS REPUBLIC……………………………………………………….RESPONDENT (Appeal from the Judgment of the Resident Magistrate, Kitale dated 24th January 2013 in Criminal Case No 2291 of 2012) JUDGMENT Introduction The Appellant, JOSEPH NYONGESA EDWIN was charged with defilement of a child contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No 3 of 2006, the particulars of the charge being that on the 17th Day of September 2012 at Kinyoro Location within Trans Nzoia County, he intentionally caused his penis to penetrate into the vagina of DC, a child aged 2 years. The Appellant faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No 3 of 2006. The facts of the case as recorded by the trial court are that on 17 th September 2012 PW 1’s baby, DC who had been left under the care of her sister F aged 16 years and a house help was asleep in her mother’s bedroom. The Appellant who was employed as a herder by PW 1 went where the baby was sleeping and defiled her. With the help of neighbours, the baby was rescued and the Appellant was arrested and booked at Kitale Police Station. The baby was examined at Kitale District Hospital. PW 3 a Clinical Officer at the Hospital testified that the baby’s hymen was torn and fresh looking, suggesting penetration. The Appellant raised the defence of alibi claiming to have been away when the alleged offence was committed. The Appellant was tried and convicted on the 1st count at the Chief Magistrate’s Court at Kitale and was sentenced to life imprisonment. The alternative charge was thus dispensed with. The Appellant’s Appeal Being aggrieved by both conviction and sentence, the Appellant filed a Petition of Appeal on 6 th February vide which he raised the following Grounds of Appeal: a. That the learned trial Magistrate erred by convicting the Appellant on uncorroborated evidence; b. That the learned trial Magistrate erred in law by relying on a P3 form that was not supported by a medical report;
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c. That the charge sheet was defective. The appeal was heard on 17th October 2013 with the Appellant appearing in person and Mr. Konga appearing for the State. The Appellant relied on his written submissions. According to the Appellant’s written submissions the charge sheet was defective as the date of arrest reflected thereon did not accord with the evidence by prosecution witnesses. In this regard, the evidence by prosecution witnesses was contradictory. Further, the word “unlawful” was missing from the particulars of the charge. The Appellant took issue with the evidence of PW 4 which was uncorroborated. In his view, the house help who was said to have been present at the time of the alleged offence should have been called as a witness. Opposition by the State In opposing the appeal, Mr. Konga learned State Counsel submitted that PW 4 positively identified the Appellant who was well known to her. Moreover, the Clinical Officer confirmed that the baby had indeed been defiled. Finding and Determination The Appellant’s appeal raises two main issues. First that the charge sheet was defective because the word “unlawful” was missing from the particulars of the charge and the date of arrest reflected thereon was different from the date of arrest as stated in evidence by prosecution witnesses. The issue then is whether these defects in the charge sheet rendered the charge unsustainable. In my view, the particulars of a charge are meant to aid an accused person in understanding the exact nature of the offence they face to enable them make an appropriate response in defence. With this in mind, I do not think the errors in the charge sheet went to the core of the charge and I find that no failure of justice was occasioned. To my mind, these errors were curable under Section 382 of the Criminal Procedure Code. That leads us to the issue of identification. The Appellant was convicted on the strength of the identifying evidence of PW 2, F N who testified that she found the Appellant who was well known to her in the very act of defiling baby DC. This evidence was corroborated by PW 3, the Clinical Officer who examined baby DC at Kitale District Hospital, confirming that the baby’s hymen was torn and fresh looking. In the case of Dennis Muthee Chokera Vs Republic [2010] eKLR the Court of Appeal held that a medical examination report on a victim of defilement provided adequate corroboration even where the Appellant was not himself examined. In the case before me, the Appellant was positively identified at the scene of crime by PW 2 whose evidence was adequately corroborated by PW 3 who testified on the injuries sustained by baby DC. In view of the foregoing, I find no reason to interfere with the judgment of the trial court which is hereby confirmed. Accordingly, this appeal fails and is hereby dismissed in its entirety. DATED AND SIGNED AT NAIROBI THIS 1ST DAY OF NOVEMBER 2013 LINNET NDOLO JUDGE DELIVERED IN OPEN COURT AT KITALE THIS 7TH DAY OF NOVEMBER 2013 J.R KARANJA
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JUDGE In the Presence of: .............................................................................................................Appellant ….......................................................................................................Respondent
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