Joshua Ouma Onthao v Republic

a police officer, who testified that the appellant was brought by the administration police officers. She issued a P3 form to PW 1, recorded statements and caused the appellant to be charged. 5. The last prosecution witness was PW 5, a clinical officer, who examined PW 1 at Karungu Subdistrict Hospital on 4th January 2012. He testified that the examination was done about 5 hours after the incident. Upon examination of PW 1 he observed swelling of labia, vaginal bruises extending to the cervix and a whitish blood discharge from the vaginal opening which suggested penetration. Urinalysis was performed and it revealed spermatozoa and epithelial cells. He produced the medical card and P3 form as exhibits. 6. The appellant gave an unsworn statement in his defence. He denied committing the offence and all the allegations made against him. He said that the person named Kevin is the person who committed the act of defilement. 7. The learned magistrate found that the prosecution had proved its case, convicted the appellant and sentenced him to life imprisonment. The appellant now appeals against the conviction and sentence on principally on the grounds that he was not the one who committed the offence. Ms Owenga, learned counsel for the State, submitted that the identity of the appellant was proved by the testimony of PW 1 who gave clear testimony and PW 2 who confirmed that she knew the appellant. She submitted that all the elements of the offence of defilement were proved and that the sentence was within the law. 8. The case for the appellant calls upon the court to re-evaluate the evidence and make its own independent findings having regard to the fact that it never heard or saw the witnesses testify. This task of the first appellate court was elucidated in Okeno v Republic [1973]EA 32 as follows; An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the Appellate Court’s own decision on the evidence. The first Appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses. 9. The ingredients of the offence of defilement are set out in section 8(1) of the Sexual Offences Act and are satisfied when the prosecution proves that a person has committed an act which causes penetration with a child. “Penetration” under section 2 of the Act, means, “the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 10.PW 1 gave clear testimony on how she was sexually assaulted. Her testimony remained unshaken in cross-examination. The proviso to section 124 of the Evidence Act (Chapter 80 of the Laws of Kenya) does not require her testimony to be corroborated in order to found a conviction. It states as follows; Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. 11.Notwithstanding the said provision, the act of penetration was corroborated by other testimony and evidence namely that of PW 2 who saw the PW 1, on the morning after the incident, in bloodied clothes and PW 5, the clinical officer, who examined her and concluded that she had been sexually assaulted. Likewise, the age of the complainant was proved by her testimony and the P3 medical report which showed that her age was assessed by PW 5 as 11 years.

page 2 of 3

12.The main issue for consideration is whether the appellant was identified as the person who defiled PW 1 on the material night. In his memorandum of appeal filed, the appellant states that no person in the neighbourhood came to testify. That in her statement, PW 1 stated that she defiled by a person she knew as Kevin Odhiambo yet she pointed out the appellant as the person who defiled her thereby contradicting herself. That his real names are Samson Taabu Onthao as stated in his national identity card and not Joshua Ouma Onthao. In view of the contradictions, the appellant argues that it is possible that it is either Kevin or Joshua who defiled PW 1 hence his conviction should be quashed. 13.The appellant raises the issue of his name for the first time in this appeal. He did not raise it either by putting it to the prosecution witnesses in cross-examination or in his defence. As the issue of his name and in particular the name appearing on his identity card was a matter peculiarly within his knowledge, the appellant ought to have raised it in his defence. I therefore dismiss the ground that the appellant’s name is not Joshua Ouma Onthao. 14.The second issue is that of the person known as Kevin Odhiambo. He is the person who called PW 3 and informed his that someone had defiled a child. When the identity of the person known as Kevin was put to PW 1 and PW 2, they denied knowing such a person. The issue then is whether there is a possibility that the said Kevin could have committed the offence. PW 1 gave clear and consistent evidence that she was defiled the whole night by someone she did not know but that she identified him in the morning. Her evidence was clear and unshaken on crossexamination. She stated that she told her aunt immediately after she left the house. The testimony was buttressed by that of the PW 2 who knew him as the next door neighbour of her sister. It also emerged from the cross-examination of PW 1 that she took PW 2 to the appellant’s place where she identified him and this is also confirmed by PW 2 who stated when cross-examined that she was threatened by him when she identified him. I find that in the totality of the evidence, the appellant was properly identified as the person who committed the felonious act. I therefore affirm the conviction. 15.Under section 8(2) of the Sexual Offences Act, the mandatory sentence imposed where a person is found guilty of defiling a child aged 11 years or less is life imprisonment. The sentence is mandatory and in light of the conviction, it is also affirmed. 16.The conviction and sentence are affirmed. The appeal dismissed. DATED and DELIVERED at MIGORI this 24th day of October 2014. D.S. MAJANJA JUDGE Appellant in person Ms Owenga, Senior Prosecution Counsel, instructed by Office of the Director of Public Prosecutions for the respondent.

page 3 of 3