REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU HCCRA NO. 150 OF 2015 STEPHEN OPIYO AJWANG..................................APPELLANT VERSUS REPUBLIC............................................................RESPONDENT [Being an appeal against the conviction and sentence of the Senior Principal Magistrate’s Court at Nyando (Hon. P. Wechuli RM) dated the 15th April 2015 in Nyando SPMCCRC No, 62 of 2014] JUDGMENT The accused person was charged with Defilement Contrary to Section 8(1)(4) of the Sexual Offences Act in that on an unknown date in August 2012 at [particulars withheld], Nyando Dostrict within Kisumu County he intentionally and unlawfully caused his penis to penetrate the vagina of W A O a child aged 16 years. He also faced an alternative charge of Indecent act with a child Contrary to Section 7 of the Sexual Offences Act. He pleaded not guilty on both charges. At the trial W A O (PW1) then 17 years old testified that sometimes in August 2012 the accused who was their neighbour’s herdsman befriended her and one day found her sleeping in her bedroom and forced himself on her. It was raining and he had covered her mouth so she could not scream. When he was done he left. She did not report the incident to her mother or to anybody else. After about a month she discovered she was pregnant. She told her mother but she did not tell her who was responsible. She stated that the accused had promised to marry her and to take her back to school once the baby became big. One day after she had given birth he went for her and they went to his parents’ home in [particulars withheld]. They continued to have sexual relations but after a month and a lot of suffering she decided to go back to her parents. It was when the accused went in search of her that he met her mother who tricked him she was taking him to her but instead took him to the office of the Assistant Chief. He was arrested and later charged with this offence. Unfortunately their baby later died. Chrisantus Mahangi (PW2) a Clinical Officer at Ahero Sub-District Hospital produced a P3 form. He did not however state whether he was the one who examined complainant. He confirmed that the complainant’s age was confirmed to be seventeen years and that she had engaged in sexual activity and even given birth. Lilian Sirai a Corporal attached to Boya Police Station testified that the appellant was taken to Boya Police Station on 9th January 2014. She produced a baptism card indicating that the complainant was born on 26th April 1996.
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In his defence the appellant maintained that the charges were false. He testified that he had gone to purchase airtime when two officers approached him and even by the time he was testifying he did not know why they arrested him. He confirmed that on 9th he met a Corporal Lilian in her office and his finger prints were taken. He contended that his request for a DNA test was turned down and further stated that he and the minor were never taken for examination. He stated that when he asked for the baby he was told it died but this was not proved. He also asserted that the complainant was older than it was alleged and urged the court to take a closer look at her Birth Certificate. He denied that he had met her or even knew her before the trial and further denied he was a herdsman as she alleged. He stated that he was a boda boda and told the court there was a land dispute between him and the complainant’s parents. He however stated that he first saw J A (the mother of the complainant) on the day she testified in the case. He explained that he had quarreled with the complainant’s father at a place called [particulars withheld] and that it was about ancestral land. After evaluating the evidence the trial magistrate found the appellant guilty and sentenced him to 15 years imprisonment. The appellant’s appeal is based on grounds that:1. “THAT the learned trial magistrate erred in law and in facts by failing to observe that the complainant herein was an adult aged over 18 years hence the charge was unlawful. 2. THAT the learned trial magistrate erred in law and in facts by failing to observe that I was never subjected to D.N.A. tests despite the allegations of pregnancy by the complainant. 3. THAT the learned trial magistrate further erred in law by failing to observe that there was no evidence of penetration as affirmed by medical officer’s report. 4. THAT the entire police investigations were shoddy as there was no material evidence availed in the form of exhibits for the prosecution to prove their case. 5. THAT this case was fabricated and manufactured on me.” At the hearing of this appeal the appellant relied on written submissions where he pointed out that the offence was said to have occurred on an unknown date in August 2012 and was never reported until 10 th June 2014. He stated the fact that the complainant did not tell her parents who impregnated her means she was not sure who it was. He submitted there were grave contradictions in the evidence regarding the date the complainant allegedly gave birth saying that according to Jane Adoyo the complainant conceived between August 2012 and July 2013 but she later stated the complainant gave birth in October 2013. He wondered how long the gestation period for humans is. He also pointed out that whereas the complainant stated the child died in April 2014 the Investigating Officer alleged the child died on 25 th January 2014 and even produced a burial permit as proof. He wondered who between these two witnesses should be believed. Further he submitted that crucial witnesses, those who would have shed light on his arrest were not called and the inference to draw from this is that their evidence would have been prejudicial to the prosecution’s case. He contended that the medical report obtained a year later did not connect him to the offence as he himself was not examined and DNA test was not done to prove he was the father of the baby as alleged. He submitted that the investigations were poor; that the investigating officer merely acted on what she was told without carrying out any investigations. Miss Chelengat, Prosecution Counsel, submitted that the evidence of the complainant that she had lived with the appellant for a month was sufficient to convict the appellant. She submitted that the complainant got pregnant and even though no DNA was done the Doctor confirmed that the complainant was defiled. She submitted further that the appellant did not deny he lived with the complainant. She contended that the sentence of fifteen years imprisonment was sufficient. She urged this court to dismiss the appeal and to uphold the sentence. In reply the appellant pleaded with the court to reduce his sentence as he was an orphan and sole bread
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winner of his family and asserted that he had no problem with the conviction. My duty as the first appellate court is to re-evaluate the evidence before the trial court so as to reach my own conclusion while bearing in mind that I did not have the benefit of observing the demeanour of the witnesses. At the trial the prosecution produced a baptismal card showing that the complainant was born on 25 th April 1996. This confirms that she was sixteen years old at the time this offence is alleged to have been committed. I am however not satisfied that the charge against the appellant was proved to the standard required of criminal cases which is beyond reasonable doubt. In my view there are so many gaps in the prosecution’s case that would entitle the appellant to the benefit of doubt. Firstly the complainant did not state when exactly in August 2012 she was defiled. Secondly there was contradiction in her testimony and that of her mother PW3 as to where this offence was committed. According to the complainant the appellant who had been pestering her found her in the place she used to sleep and forcefully had carnal knowledge of her. It was also her evidence that her mother was sleeping not too far away. However her mother’s (PW3) evidence was that at the material time the complainant was in boarding school. She was not even certain when exactly the complainant conceived but according to her the complainant returned home from school because she was nose bleeding and when she took her to a private hospital in [particulars withheld] she was not told what was wrong with her. It was only after taking her to Awasi that she tested positive for pregnancy. It is instructive that no documents were tendered to prove those hospital visits. The court was however told that the complainant gave birth in October 2013. We are not told where she gave birth or whether that birth was registered as is a requirement of the law. The Investigating Officer testified that the baby died on 26 th January 2014 and produced a burial permit as proof. What is strange about this is that whereas the complainant’s child is said to have been born in October 2013 the child named in the permit for burial produced as EXB.P3 was three years old at the time of death. It is also instructive that the complainant’s evidence was that her own child died in April of the year she appeared in court to give evidence and that was in 2014. The child who died on 26th January 2014 could certainly not be hers therefore. Two years is not such a long time that the events in this case could have escaped the complainant’s and her mother’s memory completely. The appellant’s defence at the trial and his statement in this court that he had no problem with the conviction may not be impressive but the prosecution’s evidence for such a serious offence was worse. The gaps and contradictions in the case are glaring. If some children saw the appellant at the home of the complainant when she allegedly disappeared why were they not called as witnesses. The Clinical Officer who testified and produced the P3 form is not the one who examined the complainant yet no basis was laid for this. It was easy for the complainant and her mother to count back the days from the date of giving birth to give as close a date of commission of the offence yet they did not bother. It is also strange that no report of this offence had been made to the police even though the complainant’s mother knew from the beginning who it was that had disappeared with her daughter. I would for the aforesaid reasons give the appellant the benefit of doubt and find that the charge against him was not proved beyond reasonable doubt. His appeal succeeds and he should be set at liberty forthwith unless otherwise lawfully held. Signed and dated at Kisumu this 6th day of December 2017 E. N. MAINA JUDGE Signed and delivered at Kisumu this 7th day of December 2017 D. S. MAJANJA JUDGE
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