High Court 393 of 2017

on the age of the victim. Counsel also urged that no identification parade was carried out yet the appellant was unknown to the appellant and did not lead to his arrest and that the court erred in convicting the appellant based on a nickname, Kirisoi, and evidence of single identifying witness which was not verified. Counsel made reliance on the case of Makokha Versus Republic CRA 202/1987 and Mukawa and 2 others versus Republic Cr 24/1988 (1989) Klr; that the complainant never gave any physical description of the appellant and evidence on identification was therefore not watertight. On the question of medical evidence , counsel urged that it did not link the appellant to the defilement of PW1.- reliance was made on CRA 92 of 2003 Ocharo Obaigwa Thuo Versus Republic CRA 92 of 2003. Lastly, counsel submitted that the case was not proved to the required standard in that the complainant denied that the appellant ever defiled her but specifically named her father and the other co- accused as having defiled her; that no penetration was proved as against the appellant. Counsel also submitted that the witnesses from Saint Martin who helped track the appellant were not and failure to call them was fatal to the prosecution case. In that regard, reliance was made on the case of Hillary Bwire Wafula Versus Republic CRA 8/1996 and Josephat Doe Okiria Vrs Republic CRA 11 of 2008. In opposing the appeal, Mr. Mong’are, counsel for the State submitted that the court found the child to be of tender age and the doctor did make an estimate. As to the identification parade, counsel urged that it was unnecessary because the complainant knew the appellant before. It was also counsel’s submission that there was evidence of penetration in that the complainant had a healing scar and missing hymen.As to the nickname of Kirisoi, counsel submitted that the same was never contested to in the trial court and cannot be raised at this stage. That there was no need to call the complainant’s mother as a witness as she was not at the scene nor were the other witnesses referred to. This being the first appeal, it behoves me to examine the evidence tendered in the trial court afresh, analyze it and arrive at my own independent determinations but must bear in mind that it is the trial court which had an opportunity to see and hear the witnesses and therefore better placed to determine their demeanor. I am guided by the decision in Okeno Vrs Republic (1972) EA 32 Before I analyze the grounds raised, I must briefly review the evidence tendered before the trial court. The complainant (PW1), after a voire dire examination stated that she was 10 years old testified on oath. That she was living with the father and brother at [particulars withheld]; that Mwangi (accused) went to her house one day, removed her pant, placed her on the bed and defiled her. That Kirisoi– whom she identified as to appellant once came to their house, removed her inner clothes and wanted to put his thing for urinating inside her but she went out of the house and that he never tried it again. She was taken in by a neighbour, PW2 Jeniffer Wambui , who reported the matter to the police as a result of which the three men including PW1’s father were arrested and charged with the offences they faced in court. PW1 maintained that she knew the appellant by the name of Kirisoi and that after the matter was reported to the police, PW1’s father led police to the appellant’s home. PW2 was present when the appellant was arrested. PW2 recalled that she was a neighbour of PW1 who lived with her father; that she took PW1 in; that on 23/6/2010 PW1 complained of being sick and she gave her some medication. Next day, PW1 showed PW2 her abdomen which had a large wound and she took PW1 to hospital where PW1 was found to be HIV Positive; that at the hospital she revealed that PW1 had been defiled by Mwangi (Accused 1) the appellant (Kirisoi) and her own father (accused 3) who were arrested and charged . PW3 M N M of [particulars withheld] Primary School, said that on 7/7/2010 the guardian of PW1 went to the school informing the school that PW1 was in hospital. She accompanied PW2 to St. Martin Centre where PW1 had recorded a statement to the officer that she had been defiled by her father, Mwangi and Kirisoi. PW4 S M N the Head teacher at [particulars withheld] Primary School where PW1 was learning was summoned to St. Martin’s to clarify some issues over PW1. He sent PW3 on 8/7/2010. He said that PW1’s father, 2 men and 2 boys were arrested. PW5 PC Linus Lotulya, then of Nyahururu Police Station recalled that on 26/6/2010, he received a report that a child (PW1) had been defiled by several people; that the child was interrogated, sent to St. Martin for counseling where she mentioned the appellant, her father and another as the culprits. With the help of PW1 and PW2, they arrested Accused at a quarry; they arrested the appellant whom PW1 identified as Kirisoi, a child suspect and another were arrested next day; that two of the accused persons were HIV positive, so was PW1 but the appellant was not HIV positive. PW5 recalled that earlier on, PW2 reported to the station, PW1’s father had gone there to report that PW1 had been defiled by several people but they found the report to be untrue. Dr. Waiti Kariuki, (PW6) a medical officer Nyahururu produced the P3 form on behalf of the Dr. Kamau who examined PW1 and estimated her age at 8 years; that she had a healing herpes zoster scar; hymen was not intact which has evidence of penetration. In his unsworn defence, the appellant denied knowing anything about the charge but was framed. I have considered the evidence and submissions by both counsel. To prove the charge of defilement, the prosecution has to prove beyond any doubt the following ingredients:-

page 2 of 4

1. Penetration; 2. The age of the complainant 3. Who is the perpetrator Penetration has been defined in Section 2 of the Sexual Offences Act as “ Penetration means the partial or complete insertion of the genital organ of a person into the genital organ of another person”. In this case, PW1 identified the appellant as Kirisoi and she said as follows in her testimony “ Kirisoi had also found me in the house alone and removed My inner clothes. He wanted to put his thing inside me. I ran out very fast. I went behind the house. He did not come to try again.” PW1 is the only witness to the offence. She denied that Kirisoi managed to penetrate her. Since she had been defiled by other people , one can not presume that the appellant is the one who defiled her. Although it is PW1 who led to the arrest of the appellant, her evidence is clear that Kirisoi did not penetrate her. A key ingredient of the offence of defilement was therefore not proved. The appellant also complained that the age of the complainant was not determined. Indeed the age of the complainant is a key determinant in the sentence that will be merited on the accused upon conviction. In the case of Patrick Gituma Versus republic CRA 30/2015 (Meru) the court of Appeal stated as follows “We must from the onset reiterate that lack of proof of actual age does not impugn a conviction on a charge of defilement. proof of age only becomes relevant when it comes to sentencing.” The court decisively dealt with this issue in Tumaini Maasai Vrs Republic MSA CRA 356 of 2000 (unreported) where it categorically stated; “ proof of age for purposes of establishing the offence of defilement which is committed when the victim is under the age of 18 years should not be confused with proof of age for purposes of appropriate punishment for the offence in respect of victim of defilement of various statutory Categories of age”. The Court of Appeal dealt with the above issue more extensively in the decision of Moses Nato Raphael Versus Republic Nairobi CRA 169/2014 (2015 KLR);- “On the challenge posed by the uncertainty in the complainant’s age, this court has had occasion to deal with a similar issue in Tumaini Maasai Mwangi Versus Republic Mombasa CRA 364,2010 where it was held that proof of age for the purpose of establishing the offence of defilement which is committed when the victim is under the age of 18 should not be confused with proof of age for purposes of appropriate punishment for the offence. In respect of victims is evidence that the victim is below 18 years, the offence of defilement will be established. The age which is actually the apparent age, only comes into play when it comes to sentencing. The contradiction in respect of the child’s age cannot therefore consent the appellant to avoid criminal culpability: In this case, PW1 told the court that she was 10 years. She was later examined by the doctor who estimated her age at 8 years. It is obvious that PW1 was a child of tender age. The court saw it necessary to carry out a voire dire examination , an indication that she was of tender age. She was sworn to testify. Even though there was no birth certificate or other document to prove PW1’s age or the mother’s evidence; there is sufficient evidence to establish her age. She was not a border line case and therefore falls within the bracket of 1-12 years under section 8 (2) of the Sexual Offences Act. Whether the complainant identified the appellant: All through the proceedings, PW1 referred to the appellant as Kirisoi. She said that she used to see him with her father as they went to work. PW1 also knew that the appellant used to sell vegetables. Indeed in cross examination of PW2, the appellant alluded to PW2 having bought vegetables from him. It fortifies PW1’s evidence that she knew the appellant very well. There was no need for the police to mount a parade for PW1 to identify the appellant. PW2 confirmed the same. PW2 went with PW1’s father who led to the house of the appellant when he was arrested. At no time even during his defence, did the appellant deny that he is also known as Kiresoi. Of course once the police heard the name Kirisoi, they should have indicated that Kirisoi was an alias name or another of the appellant’s names. Had the appellant raised the issue earlier, may be the prosecution would have endeavored to call evidence to prove that the appellant was also Kirisoi. In my view, the appellant was physically identified by PW1 as Kirisoi and the objection to the name is belated and not believable. The question then is whether the offence of defilement was proved. Without penetration, there cannot be defilement and I find as such. However, PW1 told the court that the appellant actually removed her pants and tried to penetrate her but she escaped.

page 3 of 4

In my view, the prosecution proved the lesser offence of committing an indecent act contrary to section 11 (i) of the Sexual Offences Act. The defence also urged that since the complainant was found to be HIV positive, then it follows that the appellant would have been but their submission does not have any medical backing. It does not follow that everybody who has sexual intercourse with an HIV person automatically contracts the virus. In any event, in this case, I find that there was no penetration and that may further explain why there was no infection of the appellant. In the end, I do find that the offence of defilement was not proved to the required standard and I quash the conviction against the appellant and set aside the sentence. I however find that the appellant committed an indecent act on the complainant and I find him guilty of the alternative charge and convict him accordingly. I sentence him to serve 10 years imprisonment. The prison sentence will start running from the date the appellant was sentenced by the trial court on 30/5/2011 Dated, signed and delivered at NYAHURURU this 14th day of November 2017. ............................. R.V.P WENDOH JUDGE PRESENT:Mr. Mutembei - Prosecution Counsel Soi Court Assistant - Appellant - present Mrs. Mureithi - for appellant

page 4 of 4