John Migwi Kinyua v Republic

mother or father as to the identity as to who committed the alleged offence; the arresting officer only stated he arrested the appellant but did not explain what enabled him to arrest the appellant; 7. From the evidence adduced by the complainant it was apparently clear that whatever happened was with her consent and that she was not forcefully defiled; she did not scream whilst in the room she left the room on her own she did not report the matter immediately to her mother’s friend or to her mother nor to the Chiefs Camp even though it was nearby; 8. The prosecution failed to comply with the provisions of Sections 77 and 34B(2)(a) of the Evidence Act when it called PW5 to testify on behalf of Dr.Kuria of Karatina District Hospital; that girls of a similar age as the complainant were known to be sexually active and the doctor in the report and in evidence did not specify the age of the broken hymen; 9. The prosecution failed to prove its case beyond reasonable doubt; 10. Though he gave a sworn statement of defence, the trial court did not analyze the adduced evidence as it was duty bound to; the trial court failed to comply with the provisions of Section 169(1)(2) of the Criminal Procedure Code; it left doubt as to the offence and the exact provision of the Sexual Offences Act that the appellant was convicted under. 11. The appellant prayed that the appeal be allowed and the conviction be quashed and the sentence set aside. RESPONDENTS SUBMISSIONS In response Prosecuting Counsel for the State gave a brief over-view and made the following submissions; 12. A brief over-view of the facts; the complainant who was aged 16 years was on her way home when the appellant riding a boda-boda offered her a ride to her home; he proceeded past the gate to her home and ended in a lodging in town where he forcefully took her in and paid for a room; that she tried to run away but was prevented by the watchman whom the appellant had conversed with earlier on; the watchman had been given some money by the appellant and had then produced a key to room No.223; 13. The appellant locked the complainant in the room and left her there and upon his return gave her his phone after engaging it to private mode; she was told to call her mother and inform her that she was safe; 14. He undressed her and had sexual intercourse with her against her will; she tried to scream but he stopped her because there were neighbors in the next room; he slept and woke up at 6.00am and defiled her again and then left her in the room; she managed to leave and whilst resting at a place called Industrial Area a friend of her mother’s found her and informed her mother; she was taken to Karatina Police Station and thereafter to Karatina District Hospital; lacerations were found on her genitalia, discharge was seen and a broken hymen; the examining doctor formed an opinion that she had been defiled. 15. On Age of the Complainant; Counsel submitted that the complainant was 16 years and under age and had no capacity to give consent; the appellant had also waylaid the complainant and had sexual intercourse with her against her will; by engaging his phone to private mode the appellant was alive to the fact that what he was doing was wrong and didn’t want to be traced; 16. On Section 77 and 34 of the Evidence Act; the appellant contended that the sections were not complied with in that the doctor PW3 who testified at the trial was not the one who examined the complainant; in response counsel stated Dr Makori PW3 gave evidence on behalf of Dr Kuria and explained that the examining doctor had left Government employment and was working in Turkana for an NGO and that it had proven difficult to secure his attendance; PW3 told the court that she was familiar with the doctors handwriting and signature having worked with him for a period of 1 ½ years; that this was allowed in law and that the appellant raised no objection and even cross-examined the witness during the trial; 17. On the case not being proved beyond reasonable doubt; Counsel submitted that the evidence of PW1 was credible and believable; PW2 and PW5 who were mother and father respectively of the complainant testified that she did not sleep at home that day; PW2 corroborated the private phone call informing her that the complainant was safe; that she couldn’t call back as the number was private; that the complainant was found the following day; PW1 knew the appellant but not by name and she gave her father PW5 a description of the appellant and he used this information to trace the appellant; upon his arrest the complainant identified him. 18. PW3 corroborated the evidence of the complainant; the defence of the appellant did not controvert the prosecution’s case; that the courts finding that the prosecution had proved its case beyond reasonable doubt was justified from the evidence; 19. Defence not considered; the appellants contention was that he was not a boda boda rider and that he was employed as a spanner boy at Mukure Suppliers and was at work from 2pm to 10pm; counsel submitted that he called no witness to corroborate his defence; that the trial court had rejected this line of defence as it amounted to a mere denial; 20. Counsel urged the court to uphold the conviction and sentence of the lower court; and to dismiss the appeal. ISSUES FOR DETERMINATION; 21. After taking into consideration the parties respective submissions this court finds the following issues for determination; (i) Whether the appellant was positively identified;

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(ii) Whether the prosecution proved its case to the desired threshold; (iii) Whether the trial court failed to consider the appellants defence without giving reasons; ANALYSIS 22. 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 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 appellant was positively identified; 23. On identification; the complainants evidence was that she was headed to the shops at about 6.30pm and that the appellant whom she refered to as John offered her a ride back home on his boda boda as it was getting dark; that she got onto his bike and from 6.30pm the appellant is alleged to have held her captive up until 10.00am of the next day; 24. She later told her father PW5 that the appellant was a person known to her and she identified him as he passed near their house; PW5 passed on the information to PW2 who was able to follow the appellant and she relayed the information of his whereabouts to the police; the testimony of PW6 the Investigating Officer was that he got a call from PW2 the complainants mother that the appellant had been sighted at Karatina near the Post Office; he proceeded there and arrested the appellant and then called the complainant to identify the appellant; 25. The appellant contends that no first report nor description of the assailant was made to the police by either the complainant, her mother or her father; but upon re-analyzing the evidence on identification it is noted that the complainant actually made a first report and gave the name of the appellant to PW4 Corporal Martha Jane of Karindundu AP Camp; it was her testimony that the complainant told her that the appellant was a motor cycle rider; PW4 further stated that the report was made on the 14 th January, 2013 at 2.00pm and that th complainant knew the appellant by name; PW4’s evidence was that; “….the victim said John Migwi was the assailant.” 26. The trial court in its judgment made a finding that the appellant was a person well known to the complainant; and it stated as follows; “The prosecution witness PW1 identified the accused person whom she called by name John as the one who abducted her and forced his penis on her vagina. She also stated in her evidence in chief that it was not the first time accused had ferried her. She was able to point out accused to her father as the perpetrator which led to the arrest of the accused. The accused was therefore very well known to her. ….There is nothing which suggests a possibility of mistaken identity as to the person who defiled PW1.” 27. The incident is said to have occurred 6.30pm that is the hour the complainant said she met the appellant; this court is satisfied that it was not yet dark at that time, in which case the prevailing conditions were favorable for accurate recognition; the complainant also spent a whole night with the appellant in room 223 at the lodging, and was in close proximity for a long period of time and she was therefore able to see and observe the appellant for a considerable length of time; and this also favored accurate recognition of the appellant, as well; 28. Identification of the appellant was based on recognition and in the case of Anjioni & Others vs R [1980] KLR 54 it was held that; “….recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends on personal knowledge of the assailant in some form or other.” 29. From the evidence adduced and the trial courts findings this court is satisfied that the appellant was a person well known to the complainant and there was no mistake as to his identity; and this curt is satisfied that he was positively identified by the complainant by way of recognition; 30. This court finds no reason for interfering with the trial courts finding on identification; 31. This ground of appeal is found lacking in merit and is disallowed. Whether the prosecution proved its case to the desired threshold; 32. The key ingredients of the offence of defilement are penetration and the age of the complainant; 33. On the key ingredient of age; the evidence of the complainant was that she was 15years of age at the time the incident; the mother PW2 also confirmed the age of the complainant and produced the Birth Certificate which was marked as ‘PExh.3’; the P3Form was also produced in court as ‘PExh.2’ also indicates that the complainant was aged 15 years on the date the alleged offence was committed. 34. The trial court made a finding that the prosecution had proved ‘this first issue’ beyond reasonable doubt; this court finds no good reason in interfering with the trial courts finding on the age of the complainant and finds that the prosecution proved that the complainant was aged

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fifteen (15) years at the time of the incident. 35. The other key ingredient of the offence of defilement is penetration; the trial court using the complainants and the doctor’s evidence made a finding that there was penetration; in its judgment the trial court states as follows; “…the accused forced his penis into her virgina, and the act lasted about 40 minutes. …..in the morning the accused woke up at around 6.00am and informed her that he was not satisfied, and repeated the act of sex on her. PW1 was examined by Dr Kuria who filled a P3Form (exh2) detailing his findings on the examination on PW1 that her hymen had been broken with inflammation around the labia minora. He also noted that there were no tears and lacerations noted. This coupled by the PRC form (exh4) which also established the hymen was broken and outer genitalia inflamed shows there was sufficient proof of penetration in the sense of the Sexual Offences Act.” 36. The inflamed genitalia meant that there were physical signs of interference on the complainant’s private parts; the report also indicates that the hymen was broken which then was supportive of the fact that there was evidence of vaginal penetration. 37. It is noted that the trial court based its finding on penetration on the evidence of the doctor PW4; and found that there was sufficient evidence to prove the key ingredient of penetration. 38. The evidence on identification and of the above two key ingredients notwithstanding it is this courts considered view that the trial court ought to have interrogated the evidence on the circumstances as a whole of the appellants sexual encounter with the complainant and her demeanor to establish the appellants “mens rea” and or whether the encounter was indeed consensual; 39. The evidence of the complainant was that she willingly boarded the motor cycle being driven by the appellant who had offered to take her home as it was getting dark; she stated that the appellant passed the gate of her home and refused to stop; it is noted that in her testimony she did not state that she either attempted to scream, protest or try to stop him in any manner; which have been the first instinctive thing to do; 40. The appellant continued on until he got to the lodging; and here she states as follows; “Accused (John) told me to climb the stairs.” 41. There is no evidence that the instruction to climb the stairs was made under threat, force or coercion nor is there any evidence of any protest raised by the complainant; she apparently obliged climbed the stairs and entered the room. 42. The evidence of CMJ (PW4) was that the complainant had refused to explain to her mother where she had slept the previous night; and upon interrogation this is what PW4 told the trial court; “On reaching the victims gate accused refused to stop. He drove to town. It was 6.30pm when it got dark the accused booked lodging, opposite IBIS 2. They went to the room. He left the victim in the room and left her with the phone and warned her not to call anyone. Later he returned drunk and asked if she had used the phone to call. He requested for the mobile number of victims mother. He ordered her to call her mother and inform her that she was safe. Victim called her mother on a private number.” 43. The above evidence which is corroborates that of the complainant indicates that the complainant had access to a phone but she never made any attempt to call her mother or anyone to rescue her even when the appellant had left the room to go and drink and even when he had fallen asleep; the complainants complacency raises doubt as to whether she was actually abducted or kidnapped; she appears to have gone willing and she showed no desire of escaping from the existing situation; 44. The evidence of the doctor PW3 who testified was that upon examination of the complainant her general appearance and demeanor and describes her in the report and in her evidence as; “She was calm and mental state calm” 45. The doctor it is noted also failed to specify on the P3 Form the age of the broken hymen; nor was it raised in evidence; the report also indicated that there were no tears or lacerations noted; it is this court’s considered view that this low detection of genital injury is a clear indication that the complainant was sexually active;; this coupled together with the evidence on record on the conduct of the complainant throughout the incident demonstrates complacency and willingness on her part and is indicative that consensual sexual intercourse took place; 46. Counsel for the State submitted that the complainant was under age and therefore had no capacity to give consent; but it is this court’s view that having regard to the circumstances particularly the complacency of the complainant, the appellant had reason to believe that she had capacity to give consent. 47. After considering the evidence on the omission of the age of the broken hymen and the absence of tears or lacerations and the conduct of the complainant throughout this court finds that there are doubts raised as to the guilty intentions of the appellant and of his culpability;

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48. At this point this court shall invoke the proviso to Section 111(1) of the Evidence Act which provides as follows; “Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused person in respect of the offence.” 49. This court reiterates that the trial court ought to have interrogated the circumstances of the encounter as a whole before arriving at the conclusion in its judgment; that from the conduct and demeanor of the complainant in that the complainant never attempted to scream or run away even when left alone in the room; she had even been left with a cell phone during the appellant’s absence but she made no attempt to use it to enable her to be rescued; the doctor who examined her detected no signs of any physical trauma and described her as being calm; that these are clear factors indicative that the sexual encounter had been consensual; 50. In summation the evidence adduced by the prosecution creates doubt as to the ‘mens rea’ of the appellant; this court is satisfied that the prosecution failed to prove its case to the desired threshold; thus rendering the conviction to be unsafe. 51. This ground of appeal is found to be partially meritorious and is hereby allowed; Whether the trial court failed to consider the appellant’s defence without giving reasons; 52. Having found the conviction to be unsafe this court finds no need not belabor itself in addressing this ground of appeal. FINDINGS AND DETERMINATION 53. In the light of the forgoing this court finds that the prosecution failed to prove its case beyond reasonable doubt; the conviction is thus found to be unsafe; 54. The appeal is found to be meritorious and is hereby allowed; the conviction is hereby quashed and sentence is hereby set aside. 55. The appellant to be set at liberty forthwith unless otherwise lawfully held. Orders Accordingly. Dated, Signed and Delivered at Nyeri this 7th day of December, 2017. HON.A. MSHILA JUDGE.

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