Luka Waithaka Ndegwa v Republic

complainant had been defiled. It was established that the complainant was born on 24 th February, 1999 and was therefore 16 years old at the time the offence was committed. PW4 produced the age assessment report as PEX 2. In cross examination, PW4 stated that they found both the complainant and the appellant in the appellant’s house and he was dressed in a vest. The Defence 7. When put on his defence, the appellant gave sworn testimony. He denied the charges. His case was that he was at home on 5 th December, 2014 when he was arrested by the police. He went outside his house where he found the complainant on a motorcycle and was thereafter detained at the station and later charged with the offence. He testified during cross examination that he first met the complainant on 4 th December, 2017 at his mother’s house where she spent that night. The Appeal 8. The appellant was, on the above evidence, convicted of the offence and sentenced to 20 years imprisonment. He has appealed to this court against both the conviction and sentence, on the grounds that:(a) the learned trial magistrate erred in fact and law in finding that the prosecution had proved its case beyond reasonable doubt; (b) the trial magistrate erred in law and fact in shifting the burden of proof to the appellant; (c) the trial court erred failing to consider that there were inconsistencies in the evidence; (d) the trial magistrate erred in failing to consider the evidence that had been adduced by the complainant before she was declared a refractory witness; (e) the trial magistrate erred in failing to consider the evidence of the appellant; and (f) the trial magistrate erred in considering extraneous matters. Submissions 9. At the hearing of the appeal, Mr. Kairu learned counsel for the appellant made extensive oral submissions. He argued that in a case of defilement, the prosecution needs to prove the age of the complainant, that there was penetration and that it was the appellant who caused the penetration. In addition to these three ingredients counsel argued the conduct of the complainant is also relevant and must be considered. Whereas the law presumes that a person below the age of 18 years cannot consent to sex, section 8 (5) of the Sexual Offences Act qualifies this so that the court should look at the circumstances of each case and in particular the conduct of the complainant. Counsel further submitted that if the child is below the age of 18 years but she voluntarily goes to a man’s house to have sexual intercourse, then the court should not find that she was defiled. Counsel relied on the case of Martin Charo v Republic [2016] eKLR where the court held that the child behaved as an adult and therefore the accused person should not have been found culpable. 10. Submitting on the evidence before the trial court, counsel stated that the complainant testified that she was not coerced into having sexual intercourse with the appellant and that this was not the first time. It was her evidence that the appellant was her friend. That there was no medical evidence to link the appellant to the offence as the spermatozoa that was found in the complainant was not tested against the appellant. Despite both being examined, the appellant’s medical report was not produced into evidence. The complainant’s testimony was that she went to the appellant’s mother’s house and the prosecution had therefore failed to prove whether the complainant was in the appellant’s house or his mother’s on the material night. 11. Counsel also pointed out to the inconsistencies in the evidence. He stated that PW2 had testified that she knew the appellant and then later stated that he was not known to her. He further submitted that the court took into account extraneous matters that were not submitted in evidence before the court. At page 23 of the judgment the court made a finding that the complainant’s mother was informed of the whereabouts of the complainant by the appellant’s mother. However, this evidence was not presented by any of the witnesses who testified. The court was asked to take into account the complainant’s evidence before she was declared a refractory witness. Her testimony was that she spent the night at the appellant’s mother’s house and did not accuse the appellant of any wrongdoing. Finally, counsel submitted that the appellant did not commit the offence with which he was charged and that the evidence on which he was convicted was underwhelming. Respondent’s Submission 12. Mr. Motende, learned prosecution counsel submitted that it was the complainant who stated that she had sexual intercourse with the appellant and that she was at his house. He submitted that it was the complainant who testified that she had sexual intercourse with the appellant and that she was at his house. She was arrested with the appellant in his house and then taken to the police station and then to the hospital. Counsel stated that there was overwhelming evidence of penetration from the P3 and PRC Forms and that the age of the complainant was proved by the birth certificate. Prosecution counsel denied that there were inconsistencies in the evidence. It was his submission that the trial court rightly convicted the appellant on the strength of the evidence that was adduced. Counsel submitted that the fact that the complainant willingly went to the appellant’s house is immaterial. Once it is proved that the complainant was below the age of 18 years and the court finds that she was defiled then it must issue a conviction. Analysis

page 2 of 5

13. This court is alive to its duty as the first appellate court to analyse and re-evaluate the evidence afresh to arrive at its own independent findings and in so doing bearing in mind that it did not have the opportunity to observe the demeanor of the witnesses. In principle, an appellate court will not depart from the findings of fact by the trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did. (See Patrick Muriuki Kinyua & another v Republic [2015] eKLR and Richard Kaitany Chemagong v Republic [1984] eKLR). 14. The first ground of appeal concerned the variation between the charge sheet which stated that the complainant was 16 years old and the evidence that was adduced in the trial that the complainant was 15 years and 10 months old at the time of the offence. The appellant’s counsel suggested in his submissions that failure to amend the charge sheet was fatal. In the charge sheet the accused person is charged with defiling a child aged 16 years old under section 8(4) of the Sexual Offences Act. However according to the birth certificate and the evidence of complainant she was born on 24th February 1999 and was therefore 15 years 10 months at the time of the offence. The appellant’s counsel suggested in his submissions that failure to amend the charge sheet was fatal Therefore the accused person should have been charged under section 8 (3) of the Sexual Offences Act. 15. The court of appeal has stated in several decisions, that the age of the complainant is a critical ingredient in the offence of defilement which must be proved beyond reasonable doubt and in default this offence is not proved. In its decision in Stephen Nguli Mulili v Republic [2014] eKLR) it clarified and distinguished the proof of age for purposes of establishing that the complainant is a victim below the age of 18 years and proof of age for purposes of sentencing. It is the law that the offence of defilement is committed once it is established that there was an act of penetration or partial penetration with the victim who is below the age of 18 years regardless of the age of the child. (See Evans Wamalwa Simiyu v Republic [2016] eKLR). 16. Therefore the discrepancy between the evidence and the charge sheet in this case did not affect the charge against the appellant. It was proved beyond reasonable doubt by the testimony of PW2 and the birth certificate that the complainant was below 18 years old and therefore a child to whom the offence of defilement applies. The fact that the charge sheet reflected an older age (but not younger than 18) should in fact be no ground of appeal at all as it works in favour of the appellant who ought to have been charged under Section 8 (3) of the Sexual Offences Act. 17. The appellant also raised the issue of consent. Counsel made lengthy submissions to the effect that the complainant willingly engaged in sexual intercourse with the appellant. She went to her house voluntarily, and there was no evidence that she was coerced in any way. He urged the court to take this into account and find that there was no offence committed. In the offence of defilement, the law presumes that a child being one who is below the age of 18 years is incapable of giving consent to sex. I do not agree with the Martin Charo case (supra) that the conduct of the child is relevant to the offence of defilement. Children are among the vulnerable members of our society by reason of their age, their inability to protect and provide for themselves and also are unable to appreciate dangerous situations. It is for these reason that the law presumes that they are incapable of consenting to sexual intercourse. In enacting this provision, the legislature was only discharging its duty to act in the best interest of the child. 18. Therefore once it is proved that the complainant was below the age of 18 years the offence is completed and it is immaterial that she or he consented to sex. The defence afforded by section 8 (5) of the Sexual Offences Act does not refer to consent, but rather to reasonable belief that the complainant was above the age of majority. Counsel relied of Section 8 (5) of the Act which provides that:It is a defence to a charge under this section ifa) It is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and b) The accused reasonably believed that the child was over the age of eighteen years. 19. Section 8 (6) of the Sexual Offences Act states as follows: “(6) The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.” 20. That she consented to the sexual intercourse is not sufficient to exonerate the appellant of the offence. It is not the consent of the child that exonerates the appellant from the offence but the reasonable belief that she was above the age of majority therefore capable of consenting, and the evidence of steps taken to establish this fact. There was no evidence of any steps that the appellant took to ascertain the age of the complainant. This ground of appeal must fail. 21. The complainant was treated as a refractory witness under section 152 of the Criminal Procedure Code. This section defines a refractory witness in the following terms- “152. (1) Whenever a person, appearing either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the court to give evidence(a) refuses to be sworn; (b) Having been sworn, refuses to answer any question put to him; or (c) Refuses or neglects to produce any document or thing which he is required to produce; or

page 3 of 5

(d) refuses to sign his deposition, without offering sufficient excuse for his refusal or neglect, the court may adjourn the case for any period not exceeding eight days, and may in the meantime commit that person to prison, unless he sooner consents to do what is required of him. 22. From the proceedings of the trial court, the complainant did not refuse to be sworn, to answer any question, to produce a document or to sign a deposition. The prosecution’s complaint was that the complainant was retracting from her statement to the police. She refused to implicate the appellant in her testimony and stated that she spent the night at Graces’ house without mentioning of that she was with the appellant. To my mind she did not qualify to be a refractory witness under the above section. To the contrary she was a hostile witness. Coles v. Coles, (1866) L.R. 1P. &D. 70, 71 cited with approval by the Court of Appeal in Abel Monari Nyanamba & 4 others v Republic [1996] eKLR a hostile witness is one who “from the manner in which he gives evidence shows that he is not desirous of telling the truth to the court’. In Alowo v. Republic [1972] EA at page 324 also cited in the same case the court stated- “The basis of leave to treat a witness as hostile is that the conflict between the evidence which the witness is giving and some earlier statement shows him or her to be unreliable, and this makes his or her evidence negligible.’ 23. The complainant who evidently was reluctant to implicate the appellant who was her boyfriend was a hostile witness. The lower court erred in finding that the complainant was a refractory witness and in ordering her incarceration. The proper procedure that should have been adopted by the court and the prosecution has been enunciated by the Court of Appeal in Edusei Asili Malema v Republic [2007] eKLR thus:- “Regarding the correct procedure for declaring a witness to be hostile at the instance of the party who has called him, sections 161 and 163 (1) (c) of the Evidence Act are relevant. Section 161 gives the court discretion to permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Section 163 (1) categorizes the evidence which may be called by an adverse party or, with the consent of the court, by the party who calls him for impeachment of his credit. Such evidence which may be called to impeach the credibility of the witness includes proof of former statements whether written or oral inconsistent with any part of the evidence which is liable to be contradicted.” 24. Having found that the complainant was a hostile witness, her evidence is rendered to be of low probative value. (Abel Monari Nyanamba & 4 others v Republic (supra)). This court cautions itself that it should not found a conviction solely on the evidence of a hostile witness because his unreliability must itself introduce an element of reasonable doubt though it may be relied upon in clear cases to support the prosecution or defence case. As stated in Daniel Odhiambo Koyo v Republic [2011] eKLR a court will take a perverse view of the credibility of the hostile or refractory witness in view of his shift in position regarding his statement to the police regarding the case against the accused or is reluctance to testify. 25. In the present appeal, it is my finding that the complainant’s evidence is wholly unreliable. Firstly, it was apparent that she was not willing to tell the truth because she did not want to implicate the appellant who was her boyfriend. Secondly, she was intimidated by the court when it wrongly ordered her incarceration. At age 15, she was a young person and being detained must have affected her negatively. It is impossible to say whether her evidence was intended to favour the appellant or she was simply saying what she thought the prosecution or court wanted to hear so that she was not detained again. Following this, the court must find independent evidence that prove the other two ingredients of the offence of defilement, namely penetration; and that it was the appellant who caused the penetration. 26. The complainant was examined the morning after the alleged act and according to the PRC form spermatozoa was found in her vagina. There is no doubt from this evidence that the complainant was defiled. The question that follows is whether it was proved beyond reasonable doubt that the appellant was the one who defiled her. The appellant was not examined and there was no medical evidence to prove that the spermatozoa in the complainant was deposited by him. The fact of rape or defilement need not be proved by way of medical evidence ( AML v Republic [2012] eKLR). It can be proved by the oral evidence of the victim or by circumstantial evidence (Kassim Ali v Republic [2006] eKLR). Therefore it was not mandatory to conduct DNA testing on any discharge that is found in a complainant against the appellant as a prerequisite of making a conviction for the offence of defilement. 27. Without any direct evidence linking the appellant to the offence by way of the testimony of the complainant or medical evidence the case rests on the circumstantial evidence. The Court of Appeal in Musili Tulo v Republic [2014] eKLR held that in order to sustain a conviction, such evidence must satisfy the following requirements(a) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (b) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (c) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. 28. The trial court found that the appellant was with the complainant on the material night and therefore had the opportunity to commit the offence. She based this finding on the evidence that the complainant was with the appellant in his house at the time of arrest and the undisputed evidence that the complainant did not spend the night at her mother’s home. It is my view that the fact that the appellant was with the complainant in his house at the time of arrest is not on its own sufficient to conclude that she spent the entire night with him and accordingly that he is the one who defiled her. The appellant stated that the complainant actually spent the night in his mother’s house. The court wrongly shifted the burden of proof on the appellant to call his mother and sister to prove this fact. The obligation to prove the opportunity to commit the offence was on the prosecution. In addition, the statement of the appellant seems to be corroborated by the court’s own finding that it was the appellant’s mother who disclosed to PW2 the whereabouts of the complainant. There is a possibility that the complainant was at the appellant’s mother’s house as alleged by him and that is how she was able to reach him.

page 4 of 5

29. Further, it is my finding that the admission by the complainant to PW2 that she had sexual intercourse with the appellant and that he had asked for her hand in marriage cannot be relied on. Having declared the complainant a hostile witness, any statements she made before or after the trial have little probative value because she is cannot be relied upon to tell the truth. It is my opinion that the prosecution evidence fell below the required threshold. I am unable to find beyond reasonable doubt that the appellant defiled the complainant. 30. From the above, it is the finding of this court that the appeal must succeed. The conviction of the appellant of the offence of defilement is hereby quashed and his sentence set aside. The Appellant be and is hereby set at liberty forthwith unless otherwise lawfully held. Ruling delivered, dated and signed at Nairobi this 30th day of November 2017 R. LAGAT-KORIR JUDGE In the presence of:- ……………………………………Court Clerk ……………………………………for the appellant …………………………………….for state

page 5 of 5