High Court 1713 of 2017

1. That the conviction was founded on a defective charge; 2. That the court erred in not observing that the appellant did not understand the proceedings; 3. That the prosecution case was full of contradictions and inconsistencies; 4. That the medical evidence was irregularly produced – contrary to section 77 of the Evidence Act; 5. That PW1’s age was not proved; 6. That the court erred by not finding that PW1 was compelled to testify because of the duration of time taken before the offence was discovered. The appellant therefore prays that the conviction be quashed and sentence set aside. The appeal was opposed and learned counsel for the State Ms. Rugut submitted that PW4 and 5 proved the complainant’s age to be 6 years; that the doctor’s evidence confirmed that the appellant was defiled; that the complainant identified the appellant as the person who defiled her as she knew him before this incident. This is a first appeal and this court has a duty to carefully examine the evidence tendered before the trial court afresh, analyze it and draw its own conclusions and findings. However, this court must bear in mind that it is trial court that had an opportunity to see and hear the witnesses who testified before it and had the opportunity to observe and weigh their demeanor, a chance this court did not have. (See Okeno v Republic (1972) EA 32). The prosecution called a total of five witnesses in support of their case. PW1 T.W.W. a child aged 6 years was taken through a voire dire examination after which the court was satisfied that she was intelligent and understood the meaning of the oath sufficient to give unsworn evidence. She stated that on 23/3/2009 about 1.00 p.m. when coming from school and near their gate, the appellant whom she identified as Cyrus and who lived near their home, told her that he wanted to buy her a sweet; that he held her by the hand, took her to his house, put her on the bed, removed her under clothes, removed his clothes and lay on her. He hit her private parts with his hand and she felt pain but the appellant warned her not to scream or tell anyone or he would kill her; that later, her mother found her blood stained pant in a drawer and it is then she revealed that she was defiled; she was taken to hospital and then to the police station. PW2 C N, PW1’s mother, told the court that between 11/4/2009 and 24/4/2009, she noticed PW1’s pants missing – blue and purple and she started to look for them and found the purple one which was blood stained. On asking PW1 she started trembling saying she had been threatened with death. PW2 took PW1 to a Health Centre on 21/4/2009 but they were referred to Nyahururu Hospital. The matter was reported to Ng’arua Police Station where PW1 told the police that she was defiled by Cyrus Wa Shosho. PW3 PC Levin Nyamai of Ng’arua Police Station recalled the 22/4/2009 when PW1 and 2 went to station and reported a case of defilement. He issued them with a P3 form. He interviewed PW1 who said she was defiled by Cyrus on 23/3/2009 and he was told where Cyrus lived. On going to his house, that Cyrus chased the police with a panga but he was later overpowered and arrested. PW4 PC Linus Lotulia recalled that on 8/5/2009 while at the Children’s Desk at Nyahururu Police Station, received a report from two parents and their minor child T.W.W. The parents wanted him to interrogate the child as to who defiled her and in absence of the parents, the complainant gave the name of Cyrus who is their neighbor and that he had threatened to kill her. PW4 referred them for medical examination.

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Dr. Franklin Kariuki produced the P3 form on behalf of Dr. Franklin who examined PW1 on 8/5/2009 and found blood stains on the child’s clothes, which she had kept in the drawer; her hymen was broken and that earlier investigation revealed pus cells suggesting a sexual transmitted disease. When called upon to defend himself, the appellant opted to give an unsworn statement where he stated that from January to April, 2009 he was working in Nanyuki and returned to Ng’arua on 24/4/2009; that police officers went to his home on 8/5/2009 and informed him that he was a suspect. They went back on 11/8/2009 and arrested him. The appellant faced a charge of defilement under Section 8(1) of the Sexual Offences Act. To found a conviction under the said section, the prosecution has to prove the following ingredients: (1) Penetration; (2) The age of the victim; (3) Identity of the perpetrator Section 2 of the Sexual Offences Act defines penetration as follows: “penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person; In this case, PW1 vividly narrated to the court what happened to her once she was taken into the house by the appellant; that she was placed on the bed, her clothes were removed; that the perpetrator removed his clothes and lay on her and she felt pain and thereafter there were blood stains on her clothes from her genitalia. Although it took long before the offence was discovered, the complainant’s hymen was found to have been broken, and the doctor who examined her was of the view that there had been penetration; the doctor also found that there had been found pus evidence that there had been sexually transmitted disease, but the initial treatment notes were not produced in evidence. PW1 is a child aged 6 years. She cannot have imagined all the details in her narration. I am satisfied that PW1’s evidence was corroborated by the doctor’s findings that there was penetration of PW1. The appellant complained that the complaint’s age was not proved as required under Section 8(2) of the Sexual Offences Act. The Court of Appeal had the following to say regarding the proof of age for purposes of the Sexual Offences Act in the case of Moses Nato Raphael v Republic NRB CRA.169/2014 (2015 KLR): “On the challenge faced by the uncertainty in the complainant’s age, this court has had occasion to deal with a similar issue in Tumaini Maasai Mwange v Republic MSA CRA.364/2010 where the court held that; “proof of age for the purposes of establishing the offence of defilement which is committed when the victim is under the age of 18 should not be confused with proof of age for purposes of appropriate punishment for the offence in respect of victims of defilement of various statutory categories of age. As long as there is evidence that the victim is below 18 years, the offence of defilement will be established. The age which is actually the apparent age, only comes into play when it comes to sentencing. The contradictions in respect of the child’s age cannot therefore assist the appellant to avoid criminal culpability.” In this case when PW1 appeared before the trial court, she underwent a voire dire examination and the court was satisfied that she understood the meaning of the oath and possessed sufficient intelligence to give unsworn evidence. It is obvious that PW1 was a child of tender age. PW1 was also examined by a doctor and the age estimated to be 6 years. In that regard, age was proved and that ground must fail.

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Whether it is the appellant who committed the offence? As is common with such offences PW1, was alone when she was defiled and the law is clear that, under Section 143 of the Evidence Act, a fact can be proved by the evidence of a single witness unless a statute provides otherwise. The trial court considered PW1’s evidence, noted that she was a child of 6 years and believed her evidence to be true and no reason was disclosed why she would have framed the appellant. The court also found that the evidence of PW2, 3 & 4 corroborated PW1’s evidence as regards who defiled PW1 when she said it was Cyrus, a neighbor. Whether the charge was defective? It was the appellant’s contention that the charge was defective because it did not state “defilement of a girl contrary to Section 8(1) as read with Section 8(2) of Sexual Offence Act” and secondly that the words ‘unlawfully’ and ‘intentionally’ were not included in the charge and therefore one can conclude that the act was not ‘unlawful’ or ‘intentional’. Whether evidence supported the second charge: Section 134 of the Criminal Procedure Code provides for what the components of the charge sheet. It states as follows: “Every charge or information shall contain, a statement of the specific offence or offences together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” In this case, the charge is described as having been brought under Section 8(1) as read with Section 8(2) of the Sexual Offences Act. Though the particulars do not include the words unlawful and intentional, Section 8(1) does make a penetration of a minor unlawful and consent is not necessary. Mere omission of inclusion of the definition in the statement of the charge cannot render the charge defective. This is because there is a statement of the offence and such particulars as may be necessary for giving reasonable information as to the nature of the offence. The complainant was aged 6 years and such a child cannot consent to such an act. Besides, Section 382 of the Criminal Procedure Code is a cure for such minor defects to a charge. Section 382 reads: “Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice: Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. The appellant contended that he did not understand the proceedings. I have perused the court file. When the appellant was arraigned before the court on 14/8/2009, the charges were read to him in Kiswahili and he denied the charge. PW1 testified in Kikuyu with interpretation in Kiswahili. The appellant cross examined her and so did he question PW3, 4 and 5 and he testified in Kiswahili. I am satisfied that he understood and took part in the proceedings in the trial court. The appellant also complained that Section 77 of the Evidence Act was not complied with during the production of the medical evidence. Section 77 of the Evidence Act allows another officer to produce evidence on behalf of the officer that is not available. In this case, what the prosecution should have done is first of all apply to the court to have PW5 produced the P3 form in place of Dr. Franklin who had gone on transfer and was not available. However, despite that omission, PW5 testified that he has worked with the Doctor who filled the P3 form and was familiar with the handwriting and that is the requirement under Section 77 of the Evidence Act. Production of the P3 by PW5 cannot be faulted. Lastly, in his submissions the appellant alleged that before he was arraigned before the court, he was

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subjected to torture which contravened Article 29 of the Constitution and that the court should find that his fundamental rights were violated. I have seen the court record and do note that when the appellant appeared in court on 14/8/2009, the court noted that the appellant was naked. No more was recorded as to how the appellant came to be naked. That issue should have been taken up then so that investigations could be carried out whether his clothes were torn during the arrest or the police tore the clothes when torturing the appellant. The police cannot be summoned to investigate in this forum. Besides, what is before the court is a criminal offence in which the court cannot deal with the issue of breach of fundamental rights? An application for breach of fundamental rights can be addressed in another forum which the appellant can still pursue. Besides, this being a criminal offence against the appellant, the alleged torture at the hands of the police cannot exonerate him from criminal culpability. On the allegation that there were many contradictions in the prosecution’s case, the appellant said that whereas PW1 said that that was the first time the appellant talked to her, yet PW4 said that the appellant used to trick PW1 to get sweets and that he used to carry her on her bicycle. Incidentally it is only PW4 who made these allegations. PW1 and not ever PW2, the complainant’s mother even alleged that the appellant had committed the offence over a period of time or that he used to carry PW1 on a bicycle. However, it is common knowledge that where several witnesses testify, there is high likelihood of variations in the evidence with some even tending to exaggerate. PW4 did not witness the incident and his testimony is what he was told. However, the question here is whether PW1 was defiled and by who. The contradictions if at all did not go to the root of the charge. In the end, I am satisfied that there was overwhelming evidence that PW1 was defiled and she did identify the appellant as the person who committed the heinous act. The trial court arrived at the proper finding and I hereby confirm the conviction and sentence. The appeal lacks merit and is dismissed in its entirety. Dated, Signed and Delivered at NYAHURURU this 14th day of November, 2017. ……………………………….. R.P.V. Wendoh JUDGE PRESENT: Mr. Mutembei - Prosecution Counsel Soi - Court Assistant Appellant - present N/A - for appellant

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