High Court 77 of 2017

The appellant filed written submission in support of the appeal. Appellant attached the judgment in his submission on the grounds that the learned trial magistrate relied on the evidence of a single witness, he submitted that the trial magistrate did not appreciate that PW1 and PW2 were members of the same family who had conspired to testify against him. Secondly appellant submitted that crucial prosecution witnesses were not called, in particular one A E the aunt of the complainant from whose house she alleged to have come from; and the doctor who examined his complainant. Appellant further submitted that the medical evidence was shoddy as no spermatozoa was seen, which means that no defilement was proved. The appellant on the issue of the absence of spermatozoa submits that the complainant alleged that he had sex with her and ejaculated four times; when however she was examined the next day there was no evidence of spermatozoa in the vagina and yet it is well known that sperm can stay in the vagina of a woman for 72 hours. Appellant submits that since no spermatozoa was seen them that the complainant assertion that she was defiled was not true. Finally the appellant submits that the age of the complainant was not proved as no birth certificate, baptismal card, or clinic card was produced. He submits that the age assessment report produced was not produced by the maker. Mr. Gikunda for the state opposes the appeal. He submitted that he offence of defilement was proved and the sentence meted out under section 8 (1) (8) (3) of the Sexual Offences Act proper. This is a first appeal. Being so this court has a duty to reconsider and evaluate the evidence and make the findings. The appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8(3) of the sexual offences act which provides: 8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed as defilement. (2) A person who commits an offence of defilement with a child aged eleven years or less shall upon convicted be sentenced to imprisonment for life. Where a person is charged with an offence of defilement as in this case, the prosecution must establish or prove the main ingredients of the offence which are: a) That there was penetration which is the partial or complete insertion of the genital organ of a person into the genital organ of another person. b) That the person causing penetration is properly identified and c) That the age of the child is proved to establish the offence and also ascertain the punishment applicable. The appellant first ground of appeal is that the prosecution did not prove the charge beyond reasonable doubt. The duty of the prosecution was to lead evidence to prove all the ingredients of the offence of defilement, which are identification of the appellant; penetration and age of the complainant. The prosecution in as offence of defilement must establish all the ingredient of the offence. The prosecution must establish by evidence the age of the complainant. This is crucial because it not only establishes the offence of defilement, but also determines the sentence to be meted out in the event of a conviction. The appellant in his submission in support of his appeal submitted that the age of the complainant was not proved, as no birth certificate, birth notification or baptismal card was produced. In the present case the age of the complainant was assessed at 17 years old. That in my view was sufficient prove that the age of the complainant was 17 years old. The appellant contended in his submission that there was no proof of penetration. Thus he submitted was because although he had sex with the complainant and ejaculate four times when she was examined the next day, there was no evidence of presence of spermatozoa in her vagina. He contends that it is well known that spermatozoa can stay in the vagina for 72 hours and that the fact that no spermatozoa was seen. It is clear evidence that the complainant contention that the appellant had four rounds of sex was not true. Penetration is defined in section 2(1) of the act to mean; “Penetration means the partial or complete insertion of the genital organ of a person into the genital organ of another person.” The penetration for the purpose of proving an offence of defilement does not have to be complete or result in ejaculation of spermatozoa to amount to penetration envisaged in section 8(1) of the sexual offences Act. Prove of even partial penetration would be enough to prove penetration. Penetration can be proved by direct evidence of the complainant and/or by medical examination. The fact that there was no evidence of spermatozoa in the vagina of the complainant the when she was examined the next day does not necessary mean that there was no penetration in the Mark Olruvi Mose-V-R (2013 eKcr. The court of appeal stated: “Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence if spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated and penetration need not be deep inside the girl’s organ.” The appellant in his defense and submission denies that he is the one who defiled the complainant. He submits that it was at night and that PW2 the complainant’s brother only said that he saw a person with a white shirt and black trouser. He therefore contends that he was not positively identified. In an offence of defilement, positive identification of the accused as the person who defiled the complainant in her evidence sorted that she had known the appellant before , and therefore the issue is of recognition as opposed to identification;

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38. The Court of Appeal in the case of Wamunga vs Republic (1989) KLR 426 stated as under;- “It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.” It was also held in Nzaro vs Republic (1991) KAR 212 and Kiarie vs Republic (1984) KLR 739 by the Court of Appeal that evidence of identification/recognition at night must be absolutely watertight to justify conviction. 39. In R –vs- Turnbull & Others (1973) 3 ALL ER 549, which decision has been generally accepted and greatly used in our judicial system, the Court considered the factors that ought to be considered when the only evidence turns on identification by a single witness. The Court said: “... The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way....? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? how long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?.... Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.” The evidence of The complainant on the issue of identification/recognition was thus: I came from the farm and went to the house of my aunt one A E when I sat there it was becoming dark and I decided to walk back home. Unknown to me the accused was following me. Accused seize me from behind and he threw me to the ground and came on top of me. I screamed and my brother who was passing by came to my rescue. Accused ran away. Accused once he threw me to the ground he pulled off my clothes which were one skirt and shuka. He pulled the off me. He held me and I was lying on my back. Accused then unzipped his trouser and he got hold of his penis and inserted it in my vagina. He had four rounds of sex with me, then when he was finishing, the 5th round he was caught. I am forgiving the accused herein. When he saw my brother accused came off me and run away. I knew accused as he is a neighbour and he is a motor cycle ride. I say the accused so well there was still day light. I was not drunk. And on cross examination, by appellant she stated: You emerged from behind. You pulled me and slept with me. it was before 8 p.m. I could clearly identify you when you pulled off my dress. You slept on top of me. You threw me to the ground. I was able to recognize you very well. My eyes were open. You had no torch. You defiled me off the road, until my brother came to my rescue. We had not agreed. PW2 P L in his evidence testified: I walked to where complainant was and I saw accused on top of the complainant having sex with the complainant. Complainant had no clothes and accused was on top complainant was creaming. When accused saw me he ran away. I was able to clearly identify him. I saw him and he left a walking stick behind. It was about 8.00pm. The trial magistrate in analyzing the evidence on the issue of identification and/ or recognition in the judgement stated: PW1 was able to recognize him as during commission of the offence the accused was facing PW1 and the accused kept talking as he had one round of sex after another. The moon clearly illuminated his face and even PW2 was able to clearly recognize him on arrival. From the evidence of the complainant and her brother, the incident occurred at around 8.00 pm at night along the road. There was no light other than one provided by the moon. The complainant in her evidence testified that she was ambushed by the person from behind and felled down. She had not seen the person before she was held and fell down from behind. She explained that she only noticed that it was appellant when he lay on top of her; having sex with her. The evidence of PW2 is that he saw a naked person having sex with the complainant when he responded to screams and was a meter away, who on seeing him ran away. From the evidence that witnesses state that there was visual recognition of the appellant as the person who defiled the complainant where the evidence against the appellant is based on recognition that the court is enjoined to carefully examine the circumstances of recognition and be satisfied that the circumstances obtaining were free from error. In the present case, it is common ground that the offence was conducted at night and that the only source of light was the moonlight. Which thus may be true, there was no attempt in the evidence to attest to the brightness of the moonlight, or the intensity of the same. Prosecution did not examine with aspect. It is also noteworthy that the brother of the complainant only saw a person on top of his sister who ran away. No evidence that he had an opportunity of seeing or observing him who tenderness although the complainant states she observed the appellant over a long time, such observation in poor lighting conditions cannot be said to be true from possibility of error as was stated in R – v- Tumbull (supra) a court should be reminded that mistakes in recognition of close relatives and friends sometimes occur. In my analysis, I find that he ……of the incident were not favourable and true from possibility of error to form a basis of the conviction. In criminal cases the evidence of identification and/or recognition must be beyond reasonable doubt to form a basis of a conviction.

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In the result I find that the appellant who not identified/or recognized as the person who defiled the complainant. I therefore allow the appeal set aside the conviction and sentence and direction that the appellant Aloto Ewoi be released forthwith unless lawfully detained. Dated and signed at Lodwar this 4th day of December 2017. S N RIECHI JUDGE

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