REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITALE CRIMINAL APPEAL NO 48 OF 2013 GAILETH MUBARAK ELKANA……….……………………………………………………… APPELANT VS REPUBLIC……………………………………………………………………………... ….RESPONDENT (Appeal from the Judgment of the Senior Principal Magistrate, Kitale dated 15th April 2013 in Criminal Case No 2530 of 2011) JUDGMENT Introduction The Appellant, GAILETH MUBARAK ELKANA was charged with defilement of a child contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No 3 of 2006. The particulars of the charge were that on (sic) the month of June 2011 at [particulars withheld] Village within Trans Nzoia County, the Appellant intentionally caused his penis to penetrate into (sic) the vagina of B N O, a child aged 12 years. The facts of the case as recorded by the trial court are that sometime in the month of June 2011 at around 6.00 pm, the Complainant was sent by her father F W to buy paraffin at Khoikhoi Market. The Complainant testified that she was lured to a hotel within the Market by one Mama Irene where the Appellant defiled her. The Appellant warned the Complainant against telling anyone what had happened to her. Two days later, Mama Irene took the Complainant to her house where the Appellant defiled her again. Upon inquiry by the Complainant’s mother who had been prompted by her teacher, the Complainant told her mother what had happened to her. The Complainant was examined at Lukhome Hospital and later at Kitale District Hospital and found to be pregnant. The Appellant denied the charge. He was tried and convicted at the Chief Magistrate’s Court at Kitale and was sentenced to 20 years’ imprisonment. The Appellant’s Appeal Being aggrieved by both conviction and sentence, the Appellant filed a Petition of Appeal on 22 nd April 2013, raising the following Grounds of Appeal: a. That the learned trial Magistrate erred by convicting the Appellant on contradictory and
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inconsistent evidence by prosecution witnesses; b. That the age of the Complainant was not conclusively established; c. That the learned trial Magistrate erred in convicting the Appellant on extraneous allegations ; d. That the Appellant was not subjected to medical examination to prove that he had committed the offence of defilement. The appeal was heard on 17th October 2013 with Mrs. Kibe appearing for the Appellant and Mr. Konga appearing for the State. Counsel for the Appellant relied on the Appellant’s written submissions pointing out contradictions on the actual age of the Complainant. On identification, Mrs. Kibe submitted that the Complainant did not even know the name of her assailant, only referring to him as “Ndume Gredi.” The trial court relied on the sole evidence of the Complainant to convict the Appellant. According to Counsel, Mama Irene who was said to have lured the Complainant to be defiled should have been called as a witness or charged as a co-accused. Counsel further pointed out that the age of the Complainant’s pregnancy was not ascertained and no DNA test was carried out to link the Appellant with the pregnancy. Opposition by the State Mr. Konga learned State Counsel opposed the appeal. He submitted that the discrepancies as to the age of the Complainant were immaterial since she was undoubtedly a child of tender years. With regard to identification of the Appellant, Counsel noted that PW 1 told PW 2 that she had been defiled by someone working at the hotel whose nickname was “Ndume Gredi.” Mr. Konga added that Section 124 of the Evidence Act allows conviction on uncorroborated evidence in sexual offences. Counsel further submitted that the Complainant could not have undergone genital examination since she was pregnant and that she gave birth nine (9) months after the time of defilement. Finding and Determination Counsel for the Appellant took issue with inconsistencies in prosecution evidence as to the age of the Complainant. According to the Complainant and her mother, J N W the Complainant was 13 years old. However, PW 3 a Dentist at Kitale District Hospital assessed her age at 12 years. I am aware that in determining cases under the Sexual Offences Act, the age of the Complainant is a critical factor. Nevertheless, I find that the discrepancies presented by the Prosecution do not affect the substance of the charge in any material way since Section 8(3) of the Act covers the range between 12 and 15 years. At any rate, I am satisfied that a proper age assessment was conducted on the Complainant and her age placed at 12 years. That dispenses with the issue of the age of the Complainant. I will now deal with the question of identification. Apart from the Complainant, there was no other evidence linking the Appellant with the offence. While under Section 124 of the Evidence Act, a court may convict on the uncorroborated evidence of the Complainant in a sexual offence, there must be compelling reasons to do so. In my view, before convicting on the evidence of the Complainant alone, the Court must be satisfied that the Prosecution has adduced all circumstantial evidence available to support its case. Section 124 of the Evidence Act cannot therefore be used to fill in gaps in the prosecution case. In the instant case, the Complainant was not subjected to genital examination because she was pregnant. There was however no reason why a DNA test was not conducted to confirm paternity of the Complainant’s child. This was more so because the Complainant could not remember the exact date when she was defiled by the Appellant. In the case of Abdisalan Burale Abdi Vs Republic [2008] Eklr Ojwang J (as he then was) allowed an appeal where there was no DNA test conducted to determine the paternity of the Complainant’s child.
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Then there was Mama Irene who was said to have lured the Complainant to be defiled by the Appellant, not once but twice. According to the evidence on record, it would appear that Mama Irene lived within the Complainant’s neighbourhood. Yet, there was no explanation as to why she was not called as a witness or even charged as a co-accused. For the foregoing reasons, I find that the Prosecution failed to prove its case beyond reasonable doubt and the conviction of the Appellant was therefore unsafe. I therefore allow the Appellant’s appeal, quash his conviction and set aside the sentence. I direct that the Appellant be set at liberty forthwith unless otherwise lawfully held. DATED AND SIGNED AT NAIROBI THIS 4TH DAY OF NOVEMBER 2013 LINNET NDOLO JUDGE DELIVERED IN OPEN COURT AT KITALE THIS 7TH DAY OF NOVEMBER 2013 J.R KARANJA JUDGE In the Presence of: .............................................................................................................Appellant ….......................................................................................................Respondent
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