Republic v Rodgers Kipngeno Kirui

same – [see AJODE Vs REPUBLIC [2004] 2 KLR 81. In any case of defilement the prosecution must adduce sufficient evidence to prove beyond reasonable doubt the following three ingredients of the charge i. The age of the victim ii. The fact of penetration iii. The identity of the perpetrator The age of the victim in a defilement case is a crucial factor requiring proof as it is this age which will determine the sentence to be imposed if one is convicted of the offence of defilement. In the case of KAINGU ELIAS KASOMO Vs REPUBLIC Crim Appeal No. 504 of 2010, the court held as follows “Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved in the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed upon conviction will be dependent upon the age of the victim”. In this case the trial court observed that the complainant appeared to be ‘a girl of about 6-7 apparent age’. The complainant herself told the court that she did not know her age although she stated that she was in nursery school. Ordinarily the age of a child will be proved by documentary evidence eg a birth certificate, immunization card, school document or baptism card. In this case no such document was produced to prove the age of the complainant. Does this failure to adduce documentary evidence of age mean that her age was not proven? I think not. In FRANCIS OMURONI Vs UGANDA COURT OF APPEAL Criminal Appeal No. 2 of 2000 the court held that- “In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense….” Likewise in FAUSTINE MCHANGA Vs REPUBLIC [2012]eKLR, it was held “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”. Finally on this point in the case of RICHARD WAHOME CHEGE Vs REPUBLIC [2014]eKLR the Court of Appeal held “On the contention that the age of the complainant was not established, it is our considered view that age is not proved primarily by production of a birth certificate. PW2 the mother of the complainant testified that the complainant was 10 years old. What better evidence can one get than that of the mother who gave birth….” In this case as has been stated earlier the learned trial magistrate observed that the complainant appeared to be 6-7 years of age. PW2 who was the complainant’s mother told the court that her child was 7 years old. This is quite consistent with the evidence that the complainant was in nursery school. PW2 was the mother of the complainant. It was she who bore the complainant thus she obviously knew how old her child was. Therefore notwithstanding the lack of documentary evidence, I am satisfied that the age of the complainant has been sufficiently proved by the testimony of her mother PW2 to be 7 years old. The complainant was therefore a minor at the time of this incident. The complainant in her evidence told the court that on the date in question she had gone to spend the night at the home of her friend called ‘C’. During the night the two children slept in the same room together with the appellant who was a brother to ‘C’. The complainant in her evidence at Page 4 line 17 the complainant stated as follows:- “The accused came to where I was sleeping. He slept next to me. He removed my panties and did tabia mbaya to me. He told me to be quiet…” The complainant has explained what happened to her. As a court I take judicial notice of the fact that young children who lack sufficient vocabulary to describe the act of sexual intercourse invariably refer to the sexual act a ‘tabia mbaya’. By saying that the appellant did ‘tabia mbaya’ to her the complainant meant that the appellant had defiled her. The evidence of the complainant was corroborated by PW2 who was the child’s mother. She stated that a couple of days later she noticed that the child was walking in an awkward manner. While bathing the child PW2 noticed blood on her private parts. Upon further questioning the complainant told her mother that she had been defiled. PW4 CYNTHIA CHIRCHIR was a nursing officer at Kaptagich Dispensary. She told the court that she examined the complainant on 24/6/2013. PW4 testified that she saw blood on the child’s underwear and noted that there was swelling of the labia majora. PW4 also found

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that the child had a broken hymen. In his submissions the appellant submits that failure by the prosecution to produce the blood-stained panty as an exhibit was fatal to the prosecution case. I do not agree. The panty may have added strength to the prosecution case but the failure to produce the same as an exhibit is in no way fatal to the prosecution case. The evidence available from PW2, and the findings of the medical officer PW4 leave no doubt in my mind that the complainant had been defiled. The swollen genitalia and the broken hymen are clear proof that penetration had occurred. Indeed PW4 stated at page 13 line 21 “I was of the opinion that there was evidence of penetration” PW4 filled and signed the P3 form which was produced in court as an exhibit P.exb 1. This was expert medical evidence which has neither been challenged nor controverted at all. The complainant was a young child ages only 7 years. She had no reason to claim that she had been defiled if no such act had actually occurred. I find that the testimony of the complainant as duly corroborated by the evidence of PW2 and PW4 proves the fact of defilement beyond reasonable doubt. The last ingredient of the offence of defilement requiring proof is the identity of the perpetrator. The complainant identified the appellant as the man who defiled her. Although the incident occurred at night the complainant was able to identify the appellant as he was sleeping in the same room as she and her friend ‘C’. The child must have seen the appellant before they retired to sleep. The appellant was a man who was well known to the child. He was a brother to her friend. The complainant knew the appellant by his name ‘Cherugon’ which is how he was known in the village. PW2 confirmed to the court that the appellant was known as ‘Cherugon’. PW2 also told the court that the complainant told her that it was ‘Cherugon’ who had done ‘tabia mbaya’ to her. At no time did the complainant vary or change her identification of the person who had defiled her. The child gave her evidence in a consistent manner and she remained unshaken under cross examination by the appellant. In his defence the appellant denied having defiled the appellant. He claimed that he was away from Kaptangich on the material day having gone for a funeral in Eldama Ravine. The appellant did not raise this alibi defence early enough and he is vague about the details of the funeral. The appellant did not even say whose funeral he had gone to attend. As stated earlier the complainant was but a child. She had no grudge against the accused and had no motive to lie against him. In his submissions the appellant faulted the doctor for failing to conduct a DNA test on him. However a DNA test would not have been of any value in the circumstances since no child resulted from the defilement. The complainant was examined two days after the incident, she had bathed and thus there were no traces of semen in her genitalia. I am mindful of the fact that the complainant stated that her friend ‘C’ with whom she shared a room witnessed the defilement. The complainant even claimed that this ‘C’ was also defiled by the appellant. Was the failure to call this ‘C’ as a prosecution witness fatal to the case? It must be noted that ‘C’ was a sister to the appellant. As such it is unlikely that she or her family would have been willing to testify against the appellant. In any event I am satisfied that even without the testimony of his ‘C’ the evidence on record sufficiently proves the charge of defilement beyond reasonable doubt. During the appeal the appellant applied to have the OB relating to his arrest produced as additional evidence. The application was allowed and the OB No. [particulars withheld] of 24/6/2013 from Kiptagich Police Station was produced. The appellant did not explain why he wanted this OB produced as an exhibit. The court can only presume that he wished to demonstrate that the report made did not name him as the perpetrator. This does not in any way negate the evidence on record. An OB is merely a record of a report made to the police. It is the OB report that prompts police to investigate an incident. The OB is not a summary of the evidence to be relied upon. I find that the OB did not in any way weaken the evidence adduced in court. Based upon the foregoing I find that the appellant’s conviction was sound and I do uphold that conviction. Section 8(2) of the Sexual Offences Act provides for a minimum mandatory sentence of life imprisonment where one is convicted of defiling a child aged 11 years or below. Thus the sentence of life imprisonment imposed upon the appellant was lawful and I confirm that sentence. This appeal therefore fails and is dismissed in its entirety. Dated and delivered in Nakuru this 6th day of October, 2017. Appellant in person Mr. Chigiti for DPP. Maureen A. Odero Judge

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