James Sila Mutiso v Republic

giving any cogent reasons for so doing as is required by the law under section 169 (1) of the Criminal Procedure Code. This appeal was heard by way of written submissions. The Appellant in written submissions dated 14 th June 2017 contended that PW1’s evidence was false. He submitted that if indeed PW1 had been forced into a bar which normally has revelers, the natural thing to do would have been to scream, but that she did not do so. Further, that despite the fact that it was alleged that she was taken to hospital the morning after the incident, it did not emerge that she smelt of alcohol. That it is therefore clear that there was no intoxication as alleged. The Appellant also submitted that PW1 never gave any evidence that she took a bath after the defilement, and that it was clear from the evidence of the investigating officer that there was no proof of defilement. Lastly, that the person who did the age assessment of PW1 was not called to produce the age assessment, which was thereby wrongly produced as an exhibit. The Appellant filed further submissions dated 25 th September 2015 wherein he urged that the alternative charge he was charged with was defective, as it failed to include the term “unlawfully” as provided for under section 3 of the Sexual Offences Act. Reliance was placed on the decision in Sigilani vs Republic, (2004) KLR 480 for the argument that the charge should be clear and unambiguous. Ms. Rita Rono, the learned Prosecution counsel filed written submissions dated 17th July 2017, wherein it was urged that the doctor’s evidence confirmed that there was an attempt to defile PW1, considering his opinion from his examination of PW1 that her hymen was broken and that her labia minora and majora appeared reddish. It was also submitted that the issue of failure to call the maker of the age assessment report cannot stand since the Appellant raised no objection to its production, and he had an opportunity to cross examine the doctor who produced the same. As this is a first appeal, I am required to re-evaluate the evidence tendered in the trial Court, and come to an independent conclusion as to whether or not to uphold the conviction and sentence. This task must have regard to the fact that I never saw or heard the witnesses testify (see Okeno v Republic [1973] EA 32). The facts of the case as per the trial court record are that on 13 th May, 2013 at 8:00 pm, J N M (PW1) was on her way back home after escorting her friend called A, when she met the Appellant who got hold of her by force by her waist and forced her into a bar. The Appellant then bought two mugs of senator keg for her and instructed her to take it. PW1 got drunk and the Appellant then led her to his house where he gave her another bottle of beer. According to PW1, the Appellant then forcefully undressed her and undressed himself, and defiled her the entire night. PW1 stated that she raised an alarm, but the Appellant told her that no one could hear her as he lived alone. The next day when the Appellant left he locker her in his house, and PW1 then she called out for N who came. The Appellant also then came, opened the door and told her she would go nowhere. The police then came and PW1 was taken to hospital for examination. PW3 who was R N M, an aunt of PW1, and J M M M (PW4) who was PW1’s father, both testified that they received a report that PW1 was locked inside a house, and went and found PW1 locked inside the Appellant’s house that morning. According to Philip Njaramba, a clinical Officer at Matuu District Hospital (PW2), a medical examination of PW1 revealed that PW1’s labia minora and majora appeared reddish and her hymen had been broken. A urine test was done which revealed that she had pus and blood cells, but that there were no spermatozoa. PW2 stated that this could have been so due to the lapse of time and the fact that PW1 had taken a bath. An age assessment test was also done which revealed that she was aged 12 years. The filled P3 form and age assessment report were produced by PW2 as the Prosecution’s Exhibit 1 and 2 respectively. APC Solomon Indalo of Kisiiki AP post (PW5) stated that they received a report of a man who had locked in a girl in his house, and he proceeded to the scene and found the Appellant and a girl inside the

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Appellant’s house. That upon interrogating the girl he found out that she had spent the night there. He then arrested the Appellant. On cross examination, PW5 stated that the Appellant’s door had been locked from inside and outside, and that PW1 told them that she spent the night in that house. The investigating officer, Corporal Betty Kigen of Yatta Police station (PW6), stated that PW1 and the Appellant were taken to the police station, and it was alleged that PW1 had spent the night out at the Appellant’s house. Further, that a P3 form was filled but that there was no proof of defilement, and that PW1 was taken for an age assessment test and it revealed that she was 12 years of age. When put on his defence, the Appellant gave an unsworn statement that he left home on 12 th May, 2013, and went to the market where he works as a cloth seller. At 11.00 am, he left to answer a call of nature when two people unknown to him arrested him. Further, that he was not told the reason for his arrest and was arraigned in court and charged with the offence he is facing. I have considered the grounds of appeal and the arguments made thereon, and evidence adduced in the trial Court, and note that the issues for determination are firstly, whether the Appellant was convicted on the basis of a defective charge, and if not, whether the conviction of the Appellant for the offence of indecent contrary to Section 11 (1) of the Sexual Offences is sustainable on the strength of the evidence adduced in the trial court. The Appellant was in this regard convicted of the alternative offence of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act which provides that: “Any person who commits an indecent act with a child is guilty of the offences of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.” The issue of when a charge is defective is to be examined in light of the requirements of the law as regards the framing of charges as stated in section 134 of the Criminal Procedure Code which provides as follows: “Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” In addition it was held in Sigilani vs Republic, (2004) 2 KLR, 480 that: "The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to specific charge that he can understand. It will also enable the accused to prepare his defence." I have perused the charge sheet and I disagree with the Appellant that the particulars of the charge as framed ought to have included the word “unlawfully”, as there is no such word in the ingredients of the offence as set out in section 11(1) of the Sexual Offences Act hereinabove. In addition, the particulars as framed in the alternative charge did disclose an offence known in law as shown by the said section, which included the section of the law creating the offence, the date of the offence, the place of the offence, the act constituting the offence and the name of the victim. On the second issue, the elements of the offence of indecent act are provided under section 2 of the Sexual Offences Act, which define an indecent act are as follows: a) “Any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration.

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b) Exposure or displays of any pornographic material to any person against his or her will.” The relevant evidence adduced in the trial Court as to the indecent act was that the Appellant was found with the complainant at the scene of the alleged offence, which was the Appellant’s house. The evidence by PW1 was that the Appellant undressed her and himself and defiled her the whole night. Her evidence was also sufficiently collaborated by the evidence of PW2 who examined PW1 and filled a P3 form that was produced as an exhibit, and which showed that PW1’s genital organs were reddish, and his conclusion was that there was an attempt to defile PW1. Lastly, as regards proof of the age of the complainant, PW2 also produced an age assessment report prepared by his collegue at work, whose handwriting he stated that he was familiar with. The Appellant contended that the age assessment was not produced by the maker and should not be considered by this court. The prosecution however did lay a basis for production of the report without the maker by identifying the handwriting and signature of the maker. In Sibo Makovo v. Republic (1997) e KLR where it was held as follows in this regard: “The p3 form was filled in by the medical officer, Naivasha District, was produced by PW3. The record does not show that the contents of the p3 form were explained to the appellant. Nor does the record show that the maker of the report (p3 form) was not available to give the requisite evidence. No foundation was laid as to produce the p3 form by a person other than the maker thereof. It is trite law that if the maker of a document is not available the document can be produced only after another person identifies the signature of the maker and in terms as laid in section 33 of the Evidence Act (Cap 80 Laws of Kenya) so far as relevant. It appears to us that production of p3 forms in courts is to taken seriously and we wish to impress upon trial magistrates to be careful in admitting p3 forms when the maker is not called.” In the present appeal, the foundation for producing the age assessment by PW2 who was not its maker was laid, and the Appellant failed to object to the production of the report. His argument to its production cannot therefore stand. Lastly, the Appellant in his defence merely denied the offence and failed to give an account of his whereabouts on the 13th May, 2013. Further, he did not rebut the evidence that PW1 was found in his house the next day after the alleged offence. It is thus my finding that the prosecution did prove their case beyond reasonable doubt, and that the conviction of the trial Court was proper and legal. The sentence imposed on the Appellant of ten years imprisonment was also legal as section 11(1) of the Sexual Offences Act provides for a minimum sentence of ten years’ imprisonment for the offence of committing an indecent act with a child. I accordingly uphold and affirm the conviction of the Appellant for the charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. I also confirm the sentence imposed upon the Appellant for this conviction of ten years imprisonment, that shall run from the date of conviction by the trial court. It is so ordered. DATED AT MACHAKOS THIS 10TH DAY OF OCTOBER 2017. P. NYAMWEYA JUDGE

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