Benard Kerima v Republic

lunch time, and found her alone, without saying anything to her, he went away. On another day, as the complainant was returning from the river, the appellant took her to his home. And on yet another day, the appellant came to the complainant’s home, carrying a rungu and in a drunken state. She stated that the appellant carried her to their home and did foolish things to her after removing her under pant. Before doing the bad things to her, the appellant wore a condom on his penis before inserting it into her vagina. The complainant testified that this was the second time the appellant was defiling her and that she could not cry the first time because he covered her mouth though the second time he did not cover her mouth. She said she could not run away because he held her by force. 5. The complainant stated that she did not inform anyone of her ordeal but that on her way to school, she told one lady by the name Manyasi when she enquired from her (complainant) why she was walking in a funny way. The complainant however stated that during the first attack, her mother knew of it, but she was too drunk to care. 6. The complainant’s school teacher, Beatrice Waraba, PW3, testified that on 21st January 2011 at about 8.20 a.m., while she was at school, she received a report from a lady by the name Evelyne concerning the complainant who was seen walking in pain and crying outside the school. On checking for the child, PW3 was told by the complainant that the appellant had defiled her. 7. Upon receiving the report from the complainant, PW3 informed the school PTA Chairman, Kennedy Okari, PW4. On receiving the report and after visiting the school, PW4 summoned the Community Policing people and informed them accordingly. 8. PW1 was Denis Muthomi a clinical officer at Iyabe Kisii South Hospital. He testified as follows:- On 20th January, 2011 at 1p.m. the complainant came to hospital accompanied by a school chairman alleging defilement. She was dressed in her school uniform which was dirty on the back and shoulders near her collar. Her lymph nodes near her back were swollen but he saw no bruises or cuts on her genitalia though her hymen was not intact as it appeared it had been perforated long ago. He also noticed a foul smelling discharge (white) which was not normal which indicated a fungal infection though not sexually transmitted. 9. On conducting some tests on the complainant in the laboratory, the tests revealed that she had no HIV, syphilis or any other sexually transmitted disease. He then gave her medicine and recommended HIV and syphilis tests be repeated in three months time. 10. In addition he told the court that the swelling nodes were caused by an infection like a cold. He produced the complainants P3 form as exhibit.1 and treatment notes as exhibit.2. He also examined the accused and found no physical injuries to his genitalia, and the lab results showed he had no sexually transmitted infection but PW1 still recommended HIV and Syphilis tests on the appellant after 3 months. The appellant’s P3 form was produced as Exhibit 3. The alleged defilement took place on 20 th January, 2011. 11. PW5 was Number 75782 Police Constable Dekkono Nuno. He was the Investigating Officer. He testified that on 21st January 2011, while he was on duty at the Gesonso police post, the appellant was escorted to the police post by PW4 and other members of the public. The complainant was also escorted to the police post. PW3 was also in the group. 12. PW5 confirmed that he took the complainant and the appellant to Iyabe Sub-District Hospital for treatment after he had issued them with respective P3 forms. The P3 forms for the complainant and the appellant were produced as P. Exhibit 1 and 3 respectively, while the treatment notes for the two were produced as P. Exhibits 2 and 4 respectively. 13. After recording statements, PW5 re-arrested the appellant from the members of the public and charged him with the offences as set out hereinabove.

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The Defence Case 14. At the close of the prosecution case, the appellant was found to have a case to answer. He elected to give sworn evidence. He also called witnesses, A K who testified as DW2 and E O who testified as DW3. The appellant denied committing the offence. He stated that on a day he could not remember he was at his home when E hired him to split wood for him. On going back to finish the work the following day he found strange people who arrested him. 15. PW2 was A K A. She testified that appellant was at her home splitting wood on a date she could not remember at around 4p.m. but she did not pay him that day but she could not say anything about what appellant may have done after he left her home. DW3 was E O . Her testimony was that she hired appellant to split her firewood but as he worked, she heard that he was arrested for defiling a child though she never saw him doing this act. Both Dw2 and Dw3 admitted that the appellant was their relative. The Trial Court’s Judgment 16. After carefully analyzing the evidence that was placed before it, the learned trial court found that the prosecution had not proved its case beyond any reasonable doubt on the main count and accordingly acquitted the appellant of the same under Section 215 of the Criminal Procedure Code. The trial court was however satisfied that the prosecution had proved its case against the appellant on the alternative charge to the required standard. The appellant was accordingly found guilty as charged, convicted and sentenced to 15 years imprisonment. The Appeal 17. The appellant being dissatisfied with both conviction and sentence preferred to file an appeal to this court. In his petition of appeal dated 28th June, 2011 through the firm of Minda & Co. Advocates the appellant has raised 5 grounds which are that:1. The prosecution did not prove the case against the appellant beyond reasonable doubt. 2. There was no sufficient evidence produced to show that the appellant indecently assaulted the complainant. 3. There was no evidence produced to show the act of an indecent assault against the minor. 4. The trial magistrate failed to hold that the evidence against the Appellant was fabricated and farfetched as the minor had fallen to defilers before and was only out to look for a scapegoat. 5. The sentence meted was excessive in the circumstances to this case. The Submissions 18. Counsel for the appellant filed written submissions which submissions were highlighted at the hearing of the appeal on 2nd December 2013. Counsel submitted first and foremost that the age of the complainant was never established by the prosecution and that in the circumstances, it being not established that the complainant was a child, it was wrong for the trial court to find the appellant guilty on the alternative count. 19. It was also submitted on behalf of the appellant that there was no evidence at all to show that the appellant indeed rubbed his penis against the complainant’s vagina. Counsel questioned the use of the words “he did foolish things to me” by the complainant to describe the indecent act allegedly committed by the appellant against the complainant. It was further submitted that what the complainant purportedly proved was penetration and not rubbing of the appellant’s penis against her vagina, and that since penetration is not the same as an indecent act, the trial court should have found that the alternative count was not proved. 20. Finally, counsel submitted that the trial court misapplied and misapprehended the provisions of Section 124 of the Evidence Act in not warning herself that there was need for corroboration since the minor’s evidence did not agree with the medical evidence. He urged the court to allow the appeal as

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prayed. 21. The appeal was opposed. Mr. Shabola, from the Office of the DPP who appeared for the Respondent submitted that though the prosecution did not prove its case on the main count to the required standard, there was no doubt that the alternative count was proved beyond any reasonable doubt. 22. Regarding the age of the complainant, counsel submitted that PW1 confirmed to the court that the complainant was aged 8 years old. Counsel also submitted that the complainant who was very clear in her testimony told the court how the appellant carried her to the house, caused her to lie down, removed her under pant and defiled her; that this was the second time the appellant was defiling her. It was also counsel’s submission that the complainant positively identified the appellant as the person who had done bad things to her. 23. Concerning ground 2 of the appeal, whereby the appellant has complained that there was no sufficient evidence produced to show that the appellant indecently assaulted the complainant, Mr. Shabola submitted that there was indeed evidence before the court to prove the charge to the required standard and that the finding of the learned trial magistrate was sound. Counsel also submitted that the sentence imposed upon the appellant was neither harsh nor excessive in the circumstances since the prescribed minimum sentence under the Sexual Offences Act is 10 years. Counsel urged the court to dismiss the appeal for lack of merit. 24. In reply Mr. Minda submitted that though the complainant alleged that there was penetration, that evidence cannot be equated to indecent act by rubbing. He also submitted that the age of the complainant was still in doubt and further that the complainant’s evidence and that of PW1 was contradictory as to whether or not there was penetration after the appellant allegedly defiled the complainant. He urged the court to allow the appeal. Duty of this Court 25. As a first appellate court it is my duty to reconsider and evaluate the evidence afresh with the view of reaching my own conclusion in the matter remembering only that I do not have the privilege of seeing and hearing the witnesses who testified during the trial. See generally Pandya Vs. R [1957] EA 336; Okeno v. Republic [1972] E.A 32 and Selle and another –vs- Associated Motor Boat Co. Ltd & others [1970] E.A. 123. 26. I have now carefully reconsidered and evaluated all the evidence afresh. I have also weighed and considered the judgment of the trial court and the respective submissions by learned counsel. From an analysis of all the above, the following are the issues for determination by this court: a. Was it established conclusively by the trial court that the complainant was a child? b. Was the trial court correct in acquitting the appellant on the main count? c. Was the trial court correct in convicting the appellant on the alternative count? d. Whether the sentence imposed upon the appellant was excessive in the circumstances. 27. With regard to the first issue, the first witness PW1 (clinical officer) told the court that the complainant’s age was estimated to be 8 years old. Her teacher PW3 confirmed that the complainant was in standard 1. According to the complainant, she did not know her age and from her evidence and that adduced by PW5 the complainant’s parents were drunkards. In Faustine Mghanga v. Republic [2012] eKLR Nzioka, J persuasively held: “I do appreciate the importance of age assessment in such cases, but honestly, who can know the age of a child better than the mother of a child and or the child (if of age?) I personally take judicial notice of the fact that most people in rural areas (and even urban areas) would not purpose to have a birth certificate unless required for a specific purpose. If the courts are going to insist on birth certificates as the scientific method of proof of age there may be no successful matters especially under the

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Sexual offences Act. What kind of justice then shall we be giving if we released all the suspects not because on the totality of the evidence but on technicalities of failure to prove one single issue of age. I note that Article 159 of the Constitution of Kenya has impressed upon the courts to do justice by avoiding technicalities. What justice will be done if victims are left without redress simply because they are helpless in the hands of ‘careless, unconcerned or intentional default on the part of investigating officers who fail to demand, during investigation or prosecution to establish and or prove age of a victim beyond reasonable doubt? For how long shall the courts lament in their judgments that age was not proved and set free all suspects? Isn’t it injustice? Indeed no justice will be done, nor seen to be done and the society will continue to lose confidence in the judiciary. Is there anything like social justice? Does the society understand the court’s language of proof of age?’ Is the judiciary alive to the fact that justice is done when seen to be done?” 28. In the case of Faustine Mghanga case (above) Nzioka J. quoted the case of Mangunyi –vsRepublic in which Hon. Justice W. Ouko, quoting reference from I.F Colingwoodis Criminal Laws of East and Central Africa (London;Sweet and Maxwell) 1967 Ed. at page 123, observed:“Age may be proved by a birth certificate, or particularly in the case of Africans, by the evidence of a person present at the birth” 29. Similarly in the case of Kenneth Kiplangat Rono –vs- Republic CRA.NO. 66 of 1999 – Court of Appeal at Nakuru, O’Kubasu, Waki and Aganyanya JJA, held that age can be proved by evidence other than documentary evidence. Under Section 2 of the Sexual Offences Act, the definition of “child” has the meaning assigned thereto in the Children’s Act, No.8 of 2001. Under the Children’s Act, Section 2 thereof, a child is defined to mean: “Any human being under the age of eighteen years.” Therefore for the purpose of Section 9(1) (2) of the Sexual Offences Act a child is any human being who is under 18 years of age. 30. In this case the trial court conducted a voire dire examination on the complainant and referred to her as “the child”. PW1 who examined the complainant estimated her age to be 8 years and this age estimation is corroborated by the evidence of her teacher PW3 who told the court that she was in standard 1. Considering all the above factors and the relevant authorities and the law as cited above, I am convinced beyond a shadow of doubt that the complainant in this case was a child aged 8 years. 31. With regard to the second issue, namely whether the trial court was correct in acquitting the appellant on the main count of defilement, Section 8(1) of the Sexual Offences Act provides: “8 (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.” 32. According to the evidence of PW1 the clinical officer he stated: “……………I saw no bruises or cuts on her genitalia but her hymen was not intact it appeared as though it was perforated long ago.” Clearly from his evidence no penetration had taken place on the date of the alleged offence, nor was there any evidence of bruises on the complainant’s genitalia. If anything the evidence of the clinical officer appears to suggest that the complainant may have been previously defiled when he says that the hymen which was not intact “appeared as though it was perforated long ago.” That long time ago may have been the time the complainant referred to as the “first time” the appellant defiled her. If both the prosecution and the trial court had been vigilant, the particulars on the main count should have been amended to cover the diverse dates between that first time and the 20th January 2011. The evidence on such an amended

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charge would have water tight. In my considered view therefore, the trial court properly exercised its judicial mind when it acquitted the appellant of the charge of defilement. 33. The third issue for determination is whether the trial court’s finding of guilty on the alternative charge of committing an indecent act under Section 11 (1) of the Sexual Offences Act can be supported. Section 2 (1) of the Sexual Offences Act defines “Indecent Act” to mean an unlawful intentional act which causes – a. any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act which causes penetration; b. exposure or display of any phornographic material to any person against his or her will.” 34. In the instant case, the complainant stated in part of her evidence in chief as follows:“He carried me to our house and did foolish things. Inside he removed my clothes – my panty – and did bad things to me. He put a condom on his things and then put in here (points to her genitalia.) He put it on his penis. He lay on top of me. I lay on the floor on my back. My legs were spread apart and he put his thing in me.” 35. Clearly, the above evidence shows that in carrying the 8 year old complainant, the appellant touched the complainant’s buttocks. The evidence also shows that the appellant removed the complainant’s under pant. Such removal could not be completed without the appellant touching the complainant’s buttocks. The complainant also testified that the appellant lay on her after he removed her under pant and put on a condom. There was clearly contact between the appellant’s bust and the complainant’s chest which houses her breasts, though they may not have been fully formed. 36. In the circumstances, and for the reasons above given, I am satisfied that the prosecution proved the alternative charge of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act, No.3 of 2006, and accordingly, the trial court was right in finding the appellant guilty of the same and convicting him of it. For this offence, the prosecution did not have to prove penetration. 37. The final issue for determination is whether the sentence that was imposed upon the appellant was excessive in the circumstances. Under Section 11 (1) of the Sexual Offences Act, the punishment upon conviction for an indecent act is a term of imprisonment of not less than ten years. 38. The principles upon which an appellate Court may interfere with the sentence imposed by a trial court are now clear. In the case of Republic –vs- Kirita [2008] KLR 614, Ojwang J, (as he then was) held, and I fully concur with him that an appellate court may interfere with the sentence passed by a trial court if it is shown that – • such sentence was illegal or improper; • the trial court failed to pass a sentence which it was required to by statute to pass. 39. In the case of Mbelle –vs- Republic [1984] KLR 626, the Court of Appeal, sitting at Mombasa held that an appellate court may interfere with the sentencing discretion of a trial court if the sentence imposed is excessive in the circumstances. In the case, the appellant who had been charged with murder contrary to Section 203 as read with Section 204 of the Penal Code was eventually convicted of the lesser offence of manslaughter and sentenced to six years imprisonment. On appeal, it was held that the appellant had committed a serious offence with a deadly weapon with which he had previously armed himself and that in the circumstances, there was no justification for the appellate court to interfere with such a sentence. 40. Applying the above principles to the instant case, and considering the fact that the appellant is a neighbour and close relative of the complainant (appellant and complainant’s father are cousins), and also considering the fact that the appellant was treated as a first offender, I am of the considered view that the appropriate sentence in this case was 10 years imprisonment. Accordingly I would reduce the sentence from 15 years to 10 years imprisonment with effect from 16th June 2011.

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41. Save as to the appeal on sentence as above stated, the appeal on conviction is dismissed. R/A to Court of Appeal within 14 days from today. 42. It is so ordered. Dated and delivered at KISII this 27th day of February, 2014 R.N. SITATI, JUDGE. In the presence of:Mr. S.M. Sagwe for Minda for the appellant Mr. P.O. Ochieng for the state Mr. Bibu - Court Clerk.

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