Michael Kihara Kariuki v Republic

8. That there were inconsistencies in the evidence of the prosecution witnesses; PW1 never mentioned the sum of Kshs.50/- in her testimony; nor did she tell the court that she took the mother to the person who gave her the money; her evidence did not also touch on being wiped with a towel and the application of oil; that these facts were fabricated by PW2 so as to influence the trial court; 9. The evidence of PW3 contradicted the evidence of PW1 and PW2 as to the amounts that had been given to the minor; 10. The appellant further contented that he was tried and convicted on a defective Charge Sheet; that it indicated that he had been charged with defilement contrary to Section 8(1)(2) of the Sexual Offences Act; that the words ‘as read with’ were missing and he had been charged and convicted on a non-existent provision of the law and as such this error led to a miscarriage of justice; 11. The appellant urged the court to analyze the evidence adduced by the prosecution and come up with a different conclusion. RESPONDENTS SUBMISSIONS In response Prosecuting Counsel for the State made the following submissions; 12. The appellant was charged with the offence of defilement contrary to Section 8(1) as read with 8(2) of the Sexual Offences Act; the child defiled was aged six (6) years; he was convicted and sentenced to life imprisonment; the appeal is against conviction and sentence and was opposed; 13. Inconsistent evidence- was the first ground of appeal; the appellants contention was that the evidence of PW1, PW2 and PW3 was inconsistent; PW2 the mother of PW1 testified to having come home and found PW1 eating bread and also found her with Kshs.50/-; upon enquiring where the bread and money came from PW1 told her that the appellant had rewarded her for what he had done to her; she narrated to her mother how the appellant had inserted his ‘urinating thing’ into hers and had then wiped her with a towel and applied oil on her; 14. PW3 the Investigating Officer also gave the same narrative that after the defilement PW1 had told him that she had been she had been given bread, sweets and Kshs.50/-. 15. That the inconsistencies arise from the fact that PW1 failed to tell the trial court that she had been given Kshs.50/-; Counsel submitted that there was no inconsistencies in what PW1, PW2 and PW3 told the court was exactly the same and that the omission of Kshs.50/ was not a fatal omission. 16. When reaching its decision the trial court did not rely only on the evidence of PW1, PW2 and PW3 but also relied on the evidence of PW4 who was the medical doctor who examined the minor; she found the hymen broken and the specimens analyzed confirmed the presence of spermatozoa; which was proof of defilement and the person that the minor identified was the appellant. 17. Age- the appellant had submitted that the age of PW1 had not been proved by the prosecution; that no Birth Certificate was produced to prove the age of PW1; that the Section 8(1)(2) as framed on the Charge Sheet was defective; 18. But Counsel submitted that the Birth Certificate as provided by PW2 had been marked for identification but was never produced; but nevertheless the trial court relied on the medical evidence contained in the P3Form in determining the age of the minor; and also referred to and relied on several authorities; 19. The manner in which Section 8(1)(2) was framed in the Charge Sheet was not fatal to the prosecutions’ case; 20. Defence not considered; that the trial court upon ruling that the appellant had a case to answer advised him on how to defend himself; but he chose to remain silent and awaited the delivery of the judgment; therefore there was nothing for the trial court to consider; 21. Counsel urged the court to dismiss the appeal; and to uphold the conviction and sentence. ISSUES FOR DETERMINATION; 22. After taking into consideration the parties respective submissions this court finds the following issues for determination; (i) Whether the Charge Sheet was defective; (ii) Whether there were material inconsistencies in the evidence of the prosecution witnesses; (iii) Whether the prosecution proved its case to the desired threshold; (iv) Whether the trial court failed to consider the appellants defence; (v) Whether the appellants sentence was harsh and excessive; ANALYSIS 23. This being the first appellate court it is incumbent upon it to re-evaluate and re-assess the evidence on record and arrive at its own

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independent conclusion bearing in mind that this court did not have the opportunity or benefit of hearing and seeing the witnesses as they testified. Refer to the case of Okeno vs Republic (1972) EA 72. Whether the charge sheet was defective; 24. I have had the occasion to peruse the Charge Sheet and note that the accused is charged with defilement contrary to Section 8(1)(2); the appellant contends that the Charge Sheet is defective as there is an omission of the words “as read with”; 25. This court notes that the particulars on the Charge Sheet were set out in clear and unambiguous terms; the record also shows that the appellant followed the entire proceedings and appreciated the evidence tendered against him; and that he was given an opportunity to crossexamine all the prosecution witnesses; and was also invited to defend himself; 26. The trial court also took this omission into consideration and in its judgment invoked the provisions of Section 382 of the Criminal Procedure Code and stated as follows; “Before I conclude, I must point out the nature of poor draftsmanship which has many a times occurred with regard to such offences. The accused is charged with the offence of defilement contrary to Section 8(1)(2) of 2006. A look at the law reveals that there is no such provision. Can such an error occasion miscarriage of justice? In this case, the statement of the charge ought to have read defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offencs Act No.3 of 2006. The error is clearly an act of poor draftsmanship which can be ignored as the same is curable under Section 382 of the Criminal Procedure Code Cap 75 Laws of Kenya.” 27. This court is satisfied that the particulars on the Charge Sheet clearly stated the offence and that the omission of the word “as read with” did not occasion any miscarriage of justice nor occasion any prejudice to the appellant; he was always aware of the charge against him and the essential elements of the offence had been disclosed to him; and that the defect was curable under the provisions of Section 382 of the Criminal Procedure Code; 28. This court finds this ground of appeal of the charge sheet being defective is found lacking in merit and is disallowed; Whether there were material inconsistencies in the evidence of the prosecution witnesses; 29. The appellant contends that there were also material inconsistencies in the evidence of PW1, PW2 and PW3; PW2 the mother of PW1 testified to having come home and found PW1 eating bread and also found her with Kshs.50/-; upon enquiring where the bread and money came from PW1 told her that the appellant had rewarded her for what he had done to her; she narrated to her mother how the appellant had inserted his ‘urinating thing’ into hers and had then wiped her with a towel and applied oil on her and had given her Kshs.50/-; 30. PW3 the Investigating Officer also gave the same narrative that after the defilement PW1 had told him that she had been she had been given bread, sweets and Kshs.50/-. 31. That the inconsistencies arise from the fact that PW1 in her evidence failed to tell the trial court about being wiped with a towel and the application of the oil and that of Kshs.50/- that she had been given; 32. The failure by the complainant to mention that the appellant had wiped her and applied petroleum jelly and had given her Kshs.50/- is found not to have created or raised any doubt in the prosecutions’ case; this court is satisfied that there was other overwhelming evidence on record being that of the doctor PW4 that the trial court relied on; 33. This ground of appeal is found lacking in merit and is hereby disallowed. Whether the prosecution proved its case to the desired threshold; 34. The key ingredients of the offence of defilement are identification, penetration and the age of the complainant; 35. On identification; the trial court in its judgment made a finding that the appellant was positively identified by the complaint and stated as follows; “In this case the complainant named the accused as the one who defiled her. No one witnessed the incident. The complainant gave a detailed account of what transpired. The incident occurred in broad day light and thus was able to identify the accused as someone she had seen a couple of times. The complainant in my view though a minor gave her evidence in a clear and consistent manner. She remained unshaken during cross-examination.” 36. The trial court in its judgment stated that there were no eye-witnesses and therefore what was left was the complainants evidence against that of the appellant’s; and the trial court is found to have properly invoked the proviso to Section 124 of the Evidence Act; and found that the appellant was positively identified by the complainant as the defiler;

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37. This court is satisfied that the appellant was a person known to the complainant and that identification was by recognition; this court finds no reason for interfering with the trial courts finding on identification; 38. On age- it was the appellants contention that the age of the complainant was not proved by the prosecution; when re-evaluating the evidence on the age of the complainant and upon perusal of the court record it shows that the trial magistrate conducted a ‘voire dire’ examination for PW1; and that the trial court satisfied itself, ascertained and also established that the minor understood the nature of an oath, reasons for testifying and her duty to be truthful, then proceeded to take unsworn evidence. 39. The complainant testified to being aged seven (7) years; PW2 the minors mother stated that at the time the offence was committed the minor was six (6) years of age but at the time of testifying the minor had turned seven (7) years; she indicated that she did not have a Birth Certificate but provided the Notification for Birth which it is noted was marked for identification but was never produced; PW4 the medical doctor who examined the minor testified and produced the P3 Form (PExb.1) wherein the doctor assessed the age of the complainant as being six (6) years. 40. In the absence of a Birth Certificate it is noted that in its judgment the trial court relied on the medical evidence contained in the P3Form (PExh.1) to determine the age of the minor; the trial court made reference to and relied on several authorities such as of the cases of Gilbert Miriti Kanampius vs Republic [2013] eKLR and Joseph Kieti Seet vs Republic [2014] eKLR in support of its decision that in the absence of the Birth Certificate, evidence in the form of a P3Form is a mode available to proving age; 41. When re-evaluating the evidence on record on the age of the complainant this court makes reference and is persuaded by the case of Fred Omar Omondi vs R (2014) eKLR where the court held that that the age of a victim of a sexual offence can be proved by any other mode other than documentary evidence. 42. This court is satisfied that there was no uncertainty as to the age of the complainant; the complainant stated that her age was seven (7); and PW2 testified and stated that at the time her daughter was defiled she was aged six (6) years; PW4 testified and produced the P3 form (PExb.1) wherein the age of the complainant had been assessed as being six (6) years; 43. This court finds no good reason in interfering with the trial courts finding on the age of the minor; and finds that the prosecution proved that the minor was aged six (6) years at the time of the incident. 44. On penetration; It was the appellants contention that the prosecution failed to prove penetration which is one of the key ingredients of the offence of defilement; that the appellants contention was that penetration whether partial or complete entails insertion of the genital organ; that in PW1s evidence she used the terminology ‘urinating thing’; that the use of a thing other than a genital organ meant that the offence of defilement could not stand; 45. It is this courts considered view that the use of the words “urinating thing” by the complainant in her evidence didn’t mean that the offence of defilement was not proved; considering the age of the minor the use of “urinating thing” is found to be sufficient description by the minor of the appellants genital organ; 46. Further proof of defilement and the key ingredient of penetration is not dependant on the words used to describe the genital organs but is dependant on whether there was cogent consistent and reliable evidence adduced by the prosecution witnesses to prove the offence; 47. The doctor (PW4) who examined the complainant confirmed that the complainants hymen was broken and that she had hyperaemic labia majora and minora which means that there were physical signs of interference on the complainants private parts; the report also indicates that there was presence of spermatozoa which then is supportive of the fact that there was evidence of vaginal penetration. 48. It is noted that the trial court based its finding on penetration based on the evidence of the doctor PW4; and found that there was cogent medical evidence to prove the key ingredient of penetration. 49. This court reiterates that the trial court in its judgment stated that there were no eye-witnesses to the incident to corroborate the evidence of the minor and therefore what was left was the complainants evidence against that of the appellant’s; and the trial court is found to have properly invoked the provisions of Section 124 of the Evidence Act; 50. This court is satisfied that the prosecution proved the key ingredient of penetration. 51. In summation the evidence on record shows that there was positive and proper identification of the appellant as the person who defiled the complainant; there was also proof of penetration which is a key ingredient of the offence of defilement; lastly there was proof of the age of the victim. 52. This court is satisfied that there was overwhelming evidence on record and that the prosecution made out a strong and watertight case as against the appellant to the desired threshold; and the conviction is found to be safe; 53. This ground of appeal is found lacking in merit and is hereby disallowed. Whether the trial court failed to consider the appellants defence; 54. Upon perusal of the lower court record it shows that the trial court found that the appellant had a case to answer and when placed on his defence he stated as follows;

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“I will wait the court’s decision.” 55. The appellant chose to remain silent and to await the delivery of the judgment; therefore there was nothing for the trial court to consider; 56. This ground of appeal is found lacking in merit and is disallowed. Whether the appellants sentence merits interference; 57. On appeal no submissions were made by the appellant nor the Prosecuting Counsel on this issue; nevertheless this court deems it fit to address the issue as the appeal is against both conviction and sentence which is also the prescribed maximum sentence; the fact that the appellant was treated as a first offender as he had no previous record, is a good ground for interfering with the life sentence; twenty years for a person aged 45 is commensurate to a life sentence as he will spend the most productive stage of his life in jail. 58. This court finds that these are good grounds that warrant interference with the sentence. FINDINGS 59. In the light of the forgoing this court makes the following findings; (i) There were no material inconsistencies found in the evidence of the prosecution witnesses that go to the root of the prosecutions’ case; (ii) The prosecution is found to have proved its case to the desired threshold; (iii) This court finds that there are good grounds that warrant interference with the sentence; DETERMINATION 60. For the above reasons the appeal is found to be partially successful; 61. The appeal on conviction is found to be lacking in merit and is hereby dismissed and the conviction upheld; 62. The life sentence is hereby set aside and substituted with a term of twenty (20) years imprisonment with effect from the 15/07/2015. Orders Accordingly. Dated, Signed and Delivered at Nyeri this 9th day of November, 2017. HON.A. MSHILA JUDGE.

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